Moody v. Aiken, 50 Tex. 65

Moody v. Aiken

50 Tex. 65 | Tex. | 1878

Bonner, Associate Justice.

This case involves the discussion of the subjects of fixtures to the extent of deciding that if the iron safe and chest in controversy is, under the circumstances disclosed by the testimony, a fixture, it is a removable one, the sale of which does not come within the provisions of the statute of frauds.

Appellee, David A. Aiken, on the 11th day of September, 1876, brought suit against J. W. Ozment and appellants, Moody & Jemison, to recover an iron safe and burglar-proof combination-lock chest, of the alleged value of $1,600. He claims to have been the owner thereof on and since the 1st day of January, 1876, and that the defendants had refused to deliver the same to him on demand, but claimed title thereto in themselves; that the use of said property was of the value of $25 per month since said date, and claims this as damages for the wrongful detention of the same.

■Appellants, Moody & Jemison, answered by general denial *71ancl special plea, in which they claimed title to the property by reason of the same having been a fixture attached to a , house and lot of land which they had purchased from the said Ozment.

The plaintiff replied, and claimed title in himself by sale of said safe and chest, also from Ozment. Judgment by default was taken against this last-named defendant. A jury was waived, the cause tried by the court, and judgment was rendered for the plaintiff for the safe and chest and writ of possession awarded; and in the event of failure to deliver the same, that the plaintiff recover the sum of $1,100, value of same, as proven; also, that he recover the sum of $154 as damages for the wrongful detention. Motion for new trial, made by appellants, overruled. They appealed, and filed the following assignment of errors :

“ First. That the court erred in finding for the plaintiff against these defendants, because the facts show that the property sued for was real estate, and was the property of these defendants.

“ Second. That the court erred in permitting the witness Ozment to testify that these defendants agreed to release their claim to said iron safe, in consideration of the sale of three lots in the city of Palestine to them by said witness, on January 6,1876, because the testimony of said witness showed that the pretended release was verbal, and not in writing, and was void on account of the statute of frauds.

“ Third. That the court erred in assessing the damages for the detention of said safe against these defendants at one hundred and fifty-four dollars, because the evidence shows that plaintiff declined to bear the necessary expense or to perform the labor necessary to remove the said safe from the brick vault in which it was inclosed and situated when he purchased it, and out of which vault the said iron safe could not be removed without the labor and expense of mak- ■ ing an opening in or removing the casement; and defendants were not bound to go to any expense or to do any dam- . *72age to their own building to make delivery of said safe to the plaintiff.”

The first and second alleged errors assigned present the principal questions in the case, and will be considered together.

At one time the law of fixtures was seemingly more an arbitrary designation of things which were and which were not fixtures than defined rules founded on certain and fixed principles. More recent decisions have, however, to some extent, brought order out of this confusion, and have established for our guidance certain rules founded on reason and custom. These make the true test of a removable fixture at least to depend not so much on the mere fact of “ a ligature, a bolt, or a screw ” as upon constructive annexation, the intention of the party in making the same, and the relation which the article bears to the uses of the freehold. (Hutchins v. Masterson, 46 Tex., 555; Teaff v. Hewitt, 1 Ohio St., 511; Ottumwa Mill Co. v. Hawley, Iowa Sup. Ct., cited in 3 C. L. Jour., 657; Hare & Wallace’s Motes to Elwes v. Mawe, 3 East, 38; 2 Smith’s Lead. Cas., 196.)

The leading case of Elwes v. Maw^, supra, is said to be chiefly celebrated as having decided that there are cases in which things annexed to the freehold may be disannexed and carried away by some person claiming a property in them as against the owner of the freehold.

If this distinction between that class of fixtures which are so annexed and incorporated into the freehold as to become a part of the same, and which are not removable as a matter of right, against the consent of the owner, and that class which are not so incorporated, is kept in view, it is believed that much of the difficulty on this vexed question can be obviated, and many of the apparently conflicting decisions can be reconciled.

When the article annexed is an accessory necessary to the enjoyment of the freehold, and was erected for the benefit of the inheritance and as an addition thereto, then, as a general rule, it becomes a fixture which partakes so much of the *73realty that its ownership rests with the fee to the land, and it is not subject to removal, except by consent.

But when erected for a mere temporary purpose, and with the express or implied agreement or intention that it shall not he a permanent annexation to the freehold, then, as to a trade fixture at least, for reasons of public policy, and “in favor of trade and to encourage industry,” it becomes a fixture removable again st the will of the owner of the freehold, if effected at the proper time.

We find in digests reference to adjudicated cases upon the subject of bank safes as fixtures; (Folger v. Kenner, 24 La. Ann., 436, cited in 4 U. S. Dig., N. S., 317, sec. 8; Dostal v. McCaddon, 85 Iowa, 318, cited in 2 C. L. Jour., 147;) but as we have not access to the reported cases in full, and as this case, under the view we take of it, will not be remanded, it is not necessary to determine whether or not the safe in question is a fixture. If we should hold it to be a fixture, it would be of that class above designated as a removable fixture, and the sale of which would not come within the provisions of the statute of frauds.

In the sixth edition of 3 Parsons on Contracts, 34, it is said that a contract for the sale of removable fixtures is not within the statute of frauds.

In Brown on the Statute of Frauds, sec. 234, it is said: “In the case of fixtures which are in no sense incorporated with, but merely annexed to the freehold, the rule is well settled, that the fourth section does not apply to render verbal contracts for the sale of them inoperative. As has been correctly observed, a transfer of fixtures simply seems to be nothing more than a transfer of the right which the vendor has to sever certain chattels attached to the soil, but not part of the freehold; ”—citing Chitty on Contracts, which fully sustains this view.

In a recent work on Fixtures, in considering the question of their sale, as such, irrespective of the sale of the real estate to which they are attached, it is said: “ And here it may he *74affirmed as a rule, that things by their annexation to the land lose their character of goods and chattels, and yet the right to fixtures is not an interest in land. It would seem to follow, therefore, as a corollary from this proposition, that fixtures which a party has the right to sever and take away from the land might he transferred by the same means and forms that personal chattels of equal value might he passed from one party to another; and the better opinion is in accordance with this view. * * *

“When the contract relates to a transfer of fixtures together with the laud, of course it falls within the provision of the statute of frauds requiring a memorandum in writing; and in such case any agreement for the sale or valuation of the fixtures, although it may be of a chattel interest only, must doubtless be in writing, and executed according to the formalities of the statute.” (Tyler on Fixtures, 728, 168. To the same effect is Roberts on Fraud, 125.)

This does not conflict with the case of Hutchins v. Master-son, 46 Tex., 555. The proposition, as there announced, was based upon the hypothesis “ that the mill was annexed to and part of the land,”

Under the authority of the case of Hutchins v. Masterson and others cited above, the intention of the parties becomes a 'controlling element in the determination of the question, whether a particular annexation has or has not assumed the character of a fixture.

From the evidence in this case, the doubt and controversy in regard to the character of the annexation in issue here seem to have been determined by compromise and agreement of the parties themselves, by the payment to appellants, by J. W. Ozment, of property in value nearly equal to that of the safe and chest. (Cook v. Whiting, 16 111., 480.)

This of itself might be sufficient upon which to base our decision of this issue between the parties; but when taken in connection with the fact that, in our opinion, the sale is a legal one, we think it conclusive.

*75As regards the third error assigned, it might be sufficient to say that neither the issues raised by the pleadings nor the evidence in the case place the failure to deliver the property, on demand therefor, upon the ground of want of tender of money to place the same in condition so that it could be removed, but upon that of ownership in the appellants. However, in Shoemaker v. Simpson, Kan. Sup. Ct., 1875, reported in 3 C. L. Jour., 132, it is held, that a suit may be instituted for a fixture without previous demand, where the defendant obtained possession of the same without the consent of the owner, and held it without lawful right, claiming to be the owner himself.

There being no error apparent in the record, the judgment below is affirmed.

Judgment affirmed.