| Ark. | Feb 27, 1911
(after stating the facts). It was -not important in this case to show that the Wichita Coal & Material Company had complied -with the laws of the State of Arkansas authorizing foreign corporations to do business here, although the proof was probably sufficient to show that it had, for the reason that the mortgage and note sued on were executed to said bank in the State of Kansas, the domicil of both corporations, where the money was borrowed; nor would the doing of business -in this State by a foreign corporation that had not complied with our laws, prescribing conditions upon which such corporations may do business here, have the effect to dissolve such corporation and render said corporation in effect a partnership and its officers partners as to such business done within the State, as was held by the lower court.
The lease from Mrs. McVeagh of the right to mine coal upon the 40 acres of land does not show that any mining machinery was established upon said tract; nor was there anything in the instrument conveying or assigning said lease to the Wichita Coal &' Material Company upon the sale of the mining machinery and lease to it that would indicate that the machinery was included in the terms of the lease and subject to the vendor’s lien retained' therein, except it be the word, “appurtenances.” Under the mining law, mining machinery, apparatus and appurtenances placed upon the property by the lessee'are not regarded as fixtures that pass with the soil and lease as appurtenances, but'as personal property of the lessee that may be removed by him, in the absence of an express stipulation in the lease to the contrary. 2 Snyder on Mines, § 1320; White on Tines & Mining Remedies, § 135.
The Wichita Coal & Material Company, having bought the lease and mining equipment, mortgaged the latter, as it had the right to do, after having replaced a great deal of same with new machinery, to secure the money borrowed from appellant bank, which mortgage was duly recorded and constituted a -lien from the date of the filing for record thereof. There was no mention or description of any of this mining machinery or equipment in the assignment of the lease to the Wichita Coal & Material Company that would have put a person on notice that it was included within the terms of it, nor was such assignment of lease reserving a vendor’s lien, if it be held that it was more than an agreement to, and did, reserve a lien, recorded, nor did appellant bank have any notice whatever of any claim of or lien for purchase money of appellee upon said machinery when and upon which it took the mortgage and advanced the money. The bank’s lien, acquired by the mortgage, duly filed and recorded, was therefore superior to the vendor’s lien of appellee for the balance of the purchase money upon tire property included in the mortgage.
It follows that the court erred in declaring the vendor's lien superior to the mortgage lien of the bank and adjudging that the proceeds of the sale of the lease and machinery be first applied to the satisfaction thereof and afterwards to appellant’s judgment against the Wichita Coal & Material Company. Also in adjudging said company and E. T. Battin a partnership and rendering a judgment against said E. T. Battin for the amount of the purchase money .still due appellee company upon the lease sold by it to said Wichita Coal & Material Company. The proceeds of the sale of the mining machinery and equipment described in the mortgage must be first applied to the payment of the judgment of appellant upon its debt secured thereby, and the over-plus, if any, to the satisfaction of appellee’s debt.
For the errors indicated the judgment is reversed, and the case remanded, with directions to enter a decree in accordance with this opinion.