23 Or. 332 | Or. | 1892
This was an action in replevin to recover a steam engine and boiler which the plaintiffs claim to own by purchase from one Sarah E. Dennis. Substantially the facts are these: Sarah E. Dennis, owning a farm on the Willamette River, purchased an engine, boiler, and other fixtures and attachments necessary to make a steam sawmill, and erected the same on her land to saw timber thereon, and also to saw timber which was cut from another farm owned by her on the same river a short distance above, and floated down to the mill. When Mrs. Dennis erected this steam sawmill on her land, she did not intend to make it a part of the realty, — her intention was to preserve its character as personal property. Subsequently she sold the land on which the mill was so situated to one Bowman, orally informing him that the steam sawmill was no part of the realty, and reserving the right to enter upon the land and take it away. Bow
It is conceded that the defendant, when he purchased the land from Stranahan, had no knowledge or information that the sawmill, or the engine and boiler in controversy, were not the property of his grantor, or that any one else other than his grantor claimed to own the sawmill, or the boiler and engine, but that he purchased the same in good faith, and paid full value for the land and all things pertaining thereto, and believed that he was obtaining a good title to the farm and the sawmill. Upon this state of facts, the court charged the jury, in effect, that if Mrs. Dennis, when she sold the land upon which this sawmill, engine and boiler were situated, reserved to herself the sawmill, engine and boiler, and the right to enter upon the premises and remove them, and if the defendant
The instruction declared, in effect, that it was compet ;nt for Mrs. Dennis to preserve and continue the char-a iter of the engine and boiler as personal property after she had so permanently affixed them to the soil as to make them a part of the realty, if, at the time of her conveyance of the land, she had by a parol agreement reserved them from its operation, as personal property, and the defendant Jones was chargeable with notice of it; otherwise he would be entitled to hold them as a part of the realty. In a word, if the defendant bought the land with notice of the parol agreement and Mrs. Dennis’ rights under it, he would be bound by it. The contention for the plaintiffs is, that although the mill property, including the engine and boiler in controversy, was attached to the soil as a part of the realty, yet it was not such at the time of the sale, because by her parol agreement with her grantee she preserved and reserved its character as personalty, so that no title to it could vest in him, or any purchaser of the land, though he had no notice of such agreement. ‘ ‘ Briefly stated, ” say counsel, “our contention is, that Mr. Stranahan could invest the defendant with no better title than he himself possessed,
Tbis argument proceeds upon tbe idea tbat a purchaser of land would be bound by an agreement of tbe vendor, wbicb preserves to those chattels wbicb have become fixtures, or a part of tbe realty, tbe character of personal property, though be bad no notice of it. We are unable to subscribe to tbis doctrine. Mr. Stranaban may not have bad tbe title to tbe mill property, or claimed title to it as between Mrs. Dennis and himself, because be bad notice of tbe parol agreement and her rights in tbe premises, but as tbe mill property bad become a part of tbe realty, except as its character as personalty bad been retained by force of tbe parol agreement, be stood as to third persons who were without notice of such agreement, clothed with tbe indicia of ownership of tbe mill property, and his deed passed title to it as any other fixture which was a part of tbe realty. While, by agreement between tbe parties, barns or other structures, or fixtures, so attached to tbe soil as to become ordinarily a part of tbe realty, may be made to remain personal property, yet tbe general course of decisions is tbat a purchaser of land on wbicb such fixtures are located must have notice of such agreement, or be will be entitled to bold them as a part of tbe realty.
Tbe case of Russell v. Richards, 10 Me. 429 (25 Am. Dec. 254), cited and relied upon, is in point as supporting tbe contention for tbe plaintiffs. It was there held tbat bona fide purchasers, who, without notice, acquire title to land, are not entitled to claim such structures as a bouse, store, or mill standing on tbe land at tbe time of purchase, if such buildings were at such time tbe property of a third person, although from their situation upon tbe land they bad tbe appearance of being a part of tbe realty. But in Fifield v. Me. Cent. R. R. Co. 62 Me. 80, it is said tbat “tbe case of Russell v. Richards does not accord with tbe adjudged cases in Massachusetts and New Hampshire in tbis respect, and tbe general course of decision is rather
In Helm v. Gilroy, 20 Or. 517 (26 Pac. Rep. 851), it was held that as between mortgagor and mortgagee, machinery necessary for and used in the operation of a sash and door and planing-mill, when affixed to the building by screws, bolts, and bands, is a fixture, and subject to the lien of the mortgage. So in Pea v. Pea, 35 Ind. 387, it was held that where land is sold and conveyed, having situate upon and attached and affixed to it a steam sawmill and machinery, they will be regarded as part of the realty, and will pass to the grantee by the conveyance. This being so, subsequent dona fide purchasers, without notice, would not be affected by a private parol agreement, changing what otherwise would be a part of the realty into personal property, but they would have a right to claim that they acquired all incidents and appurtenances which, by the general rule of law, would result from such a purchase.
We think there was no error, and the judgment must be affirmed.
