111 Mich. 350 | Mich. | 1896
(after stating the facts). (1) Complainant claims that the opera house and its appurtenances were a part of the realty, and that she obtained absolute
As between complainant and defendant McNaughton, two questions are presented:
1. Was the opera house personalty or part of the realty ?
2. If personalty, have the defendant McNaughton and his assignor, Bell, treated the opera house as realty, so as to now estop them from asserting that it is personalty ?
The opera house is 120 feet long, 49 feet wide, and 24 to 35 feet high, built of wood, close to the ground, on sills, the roof supported by the sides and iron columns .running from the basement to the roof. The base of each column rests upon a stone and wood foundation. Excavations were made in the ground for the stage and for the furnace. The furnace was put in place, and the building connected with the sewers of the city. It is urged by the defendant McNaughton that the Eieldings constructed this building without a solid stone foundation because there was a cloud upon their title, and they desired to so construct it" that, if their own title failed, they might remove the building as personal property. This cloud arose from the fact that some land speculators pretended to have a title to a large tract of land in the center of the city of Sault Ste. Marie, including the land in question, by reason of some Porterfield scrip, with which they claimed to have located this land. That cloud was removed by the decision of the secretary of the interior March 31, 1890, as was known to Mr. Colwell, complainant’s agent and draftsman, when he drew the real-estate and chattel mortgages of complainant. While there is some evidence to sustain the claim of McNaughton that the Pieldings intended to construct the building with a
No brief has been filed on behalf of the defendant Harrietta H. Shute. It is not necessary to determine in this suit what contents of the opera house are fixtures, and what are not. The law furnishes an ample remedy to try that question, and it appears from the record that Mrs. Shute already has planted a suit for that purpose.
The decree of the court below is reversed, and decree will be entered in this court in accordance with this opinion, with the costs of both courts to the complainant.