Muehling v. Magee
153 S.W. 787
Mo. Ct. App.
1913
Check Treatment

Lead Opinion

OPINION.

FARRINGTON, J.

(after stating the facts). — The rulings with reference to fixtures in this as well as other states cannot be entirely harmonized; but the'general tendency of the decisions, in determining what is or is to become a fixture, is to look more to the intern tion of - the parties than to physical attachment to the realty. Plenee the cases are numerous that a house, machinery, etc., may be placed on land in a permanent •manner, but if the parties by agreement show an intention that such shall not become a part of the .realty it will not so attach and will remain personalty as between such parties and those claiming under them with notice. [Hines v. Ament, 43 Mo. 298; Neiswanger v. Squier, 73 Mo. 192 (in the latter case, the terms of the lease allowing removal were extended by oral agreement); Esther v. Burke, 139 Mo. App. 267, 123 S. W. 72.]

The appellant practically concedes that when the boiler was placed on the land, had there been an agreement that it remain personalty with notice of such agreement, he by his deed would acquire no title to it, but contends that because it once became a part of the realty, then in the absence of a removal, no severance could take place by an oral agreement to that effect between the parties dealing with the property.

• An exámination of the authorities in this State discloses no case holding that a deed of severance is necessary in order to sever a fixture from the land and make it personalty.

Appellant’s cases holding that a deed must be made to sever growing timber we do not think are applicable here. The very nature of growing timber makes it a part of the realty; intention of the parties *682dealing with, it cannot make it a chattel so long as it stands; it only becomes personalty by a physical severance. Bnt this is not the case with machinery, which may or may not be a part of the realty according to the intention of the parties. No reason is given nor distinction made between a case where a landowner may say to another, “You may put the boiler on the property and it will not become realty and is therefore out of the Statute of Frauds, ’ ’ and a case where the boiler is already on the land and they then agree that it shall not be treated as realty bnt as personalty. The same agreement that would prevent it from becoming realty when attached permanently to the soil ought and does, as between the two parties and those having notice dealing with the property, sever it from the realty.

It has been said that emblements no longer need pass by a deed, which is a concession to agricultural industry. [Mine LaMotte L. & S. Co. v. White, 106 Mo. App. 222, 235, 80 S. W. 356.] We think the same concession can be made as to machinery where the manifest intention of the parties is that it shall be treated as personalty, either before or after it is attached.

The case of Heitkamp v. The LaMotte Granite Co., 59 Mo. App. 244, 251, differs from this one in that the deed of trust was given on the real estate and the manchinery which was at that time a fixture, all owned by the grantor, while here the severance, though verbal, occurred prior not only to plaintiff’s deed, but prior also to the deed of his grantor, the Carpenter & Shaffer Manufacturing Company, and plaintiff, -according to the finding of the court, had knowledge that his grantor did not own the boiler. In the Heitkamp case there was no claim that the grantor did not own the fixtures when the deed of trust was made under which the fixtures were held.

The case of Brown v. Baldwin, 121 Mo. 126, 135, 25 S. W. 863, holds that the machinery placed on the land *683was treated by the parties not as a part of the realty, although it was a part of a factory which had been erected on the land, and was therefore not a fixture.

In the case under consideration, there is no doubt that the Carpenter & Shaffer Manufacturing Company, and the Bank of Carthage, and Magee, treated the boiler as distinct from the realty. The manufacturing company, admitting that it did not buy and was not the owner of this boiler, would certainly be precluded from maintaining such.an action, and as was held in Sword v. Low, 13 N. E. 826, 833, a grantee'with notice has no greater rights than his grantor had.

It was held in the case of Hawkins v. Hersey, 30 Atl. (Me.) 14, that when machinery is sold and placed in a building for the purpose of making it available as a manufactory, but under an agreement between the seller and buyer that the title shall, remain in the former until it is wholly paid for, it may properly be deemed personal property, as against a mortgagee, who, with full knowledge, consents to the arrangement, and may be removed by the seller retaining title thereto, although it has the character of a fixture, and has been permanently annexed.

In the case of State Security Bank v. Hoskins, 106 N. W. (Iowa) 764, 8 L. R. A. (N. S. 376) cited by appellant, while the grantee did have notice that certain personalty, including machinery which was on the farm,.did not pass by his deed, still the court specially finds that there was no notice that the engine had passed under the bill of sale made prior to his deed, and on the ground that the engine had become realty and was not personalty it was held that it would pass with a deed to the realty; and the court in discussing the case recognizes the want of notice in the plaintiff that the engine was intended to pass under the bill of sale.

So in the case of Todd v. Monsees, 160 Mo. App. 310, 142 S. W. 743, the deed conveying the farm was *684made prior to the sale of the cider mill and without any notice to the grantee in the deed that the mill did not pass as a part of the realty.

The case of Potter v. Everett, 40 Mo. App. 152, relied on by appellant, involved the question of a sale of timber on land, and it is the law of this State that in order to pass title to growing timber it must be done by deed. Besides, the question of notice is not in that case.

In the case of Mine LaMotte L. & S. Co. v. White, 106 Mo. App. 222, 80 S. W. 356, we have the question of a severance of timber from the realty, and on page 234, Judge Goode in discussing the case uses the following language: “The instructions requested by plaintiff’s counsel only asked a verdict for possession of the lumber manufactured after March 1, 1903, at which date, as is conceded, plaintiff acquired title to the property and the trees which were part of it, without notice of the defendant’s claim. The court erred in refusing those instructions and adopting the theory that if the defendant was in possession and engaged in cutting timber on March 1, plaintiff could not recover. We know of no principle of law which sanctions that ruling.” Thus it was held, inferentially, that merely being in possession, engaged in cutting timber, was not enough to give the plaintiff any notice of defendant’s rights to the timber. Even in the case of growing timber, the lack of notice seems to be necessary for plaintiff to recover.

The correct principle we think is declared in the case of Durkee v. Powell, 77 N. Y. Supp. 368, where it was held that even if window shades and screens to a house were not personal property as a matter of law, the action of the parties dealing with the real estate by verbal agreement made them personal property, and that such agrément on their part severed the shades and screens from the realty and gave them the character of personalty, and a purchaser of the realty *685with knowledge of this understanding would hot také the window shades and screens under a warranty deed where no reservation was made in the deed.

Under all the facts and the law applicable thereto, we do not believe the plaintiff has a case that will stand in a court of equity. It is our opinion that the judgment was for the right party, and finding no error in the record, it is affirmed.

All concur.



Rehearing

ON MOTION FOE EEHEAEING-.

PEE CURIAM.

Counsel for appellant in their motion for rehearing evidently mistake the holding in our opinion. There is no question but that a deed to realty which does not reserve emblements or trade fixtures located thereon will pass title to the same to the grantee, and the grantor in the deed would be precluded from setting up an oral agreement under which he would claim that it was not intended by the parties that the emblements or trade fixtures were to pass, because this would be varying the terms of the deed. [Cantrell v. Crane, 161 Mo. App. 308, 143 S. W. 837.] What we hold is that either emblements or trade fix-, tures may be sold or severed or transferred by oral agreement and such sale, severance or transfer does not rquire the formality of a deed to pass good title. [Turner v. Morris, 142 Mo. App. 60, 125 S. W. 238.] In this case the severance of the boiler occurred long prior to the date of the deed under which the appellant claims, and he had notice of the severance when he accepted his deed and knew that he was not buying the boiler because his grantor told him that he (the grantor) did not own it. With the severance occurring long before his deed was executed and with this notice brought home to him, he is in no position to claim that which he knew his grantor did not own and therefore could not sell or transfer. When he was told by his grantor, prior to the acceptance of his deed, that the *686boiler did not belong to the grantor, a reasonably prudent man must have known from this statement that he was not buying it. The motion for rehearing is denied.-