59 Neb. 219 | Neb. | 1899
James F. Lansing and Henry Oliver erected a block in Lincoln, a part thereof being used as a theatre, furnished and set off in a manner common to such places of amusement. To aid toward the building and' furnishing of this theatre, a considerable amount was subscribed and paid by third parties, the condition of such subscriptions being in effect that a theatre, modern in every respect, should be built and fully equipped.
Afterward, Oliver sued Lansing-for an accounting as to the moneys furnished by the two toward building and furnishing the same. In said suit, an accounting was had of all moneys expended by each party in such under
Lansing filed an independent suit, claiming, in effect, that the property so removed was i>ersonalty only, of which he and Henry Oliver were joint owners, William Oliver claiming some interest therein, whom he therefore, made a party defendant, and asked that an accounting be taken of such personalty, both that removed and a large amount still contained in'the building, the rights of the parties thereto adjusted, and the same to be divided or sold, and the proceeds awarded according to such interests.
To this petition William Oliver answered, claiming that by virtue of the partition sale the title to all of the property contained in said building passed to him.
The property consisted of a variety of articles, such as stage settings, scenery, drop curtains, ropes for shifting scenes,, carpets nailed to the floor, rugs , lying loose thereon or tacked down, portieres, window and box curtains, gas and electric light fixtures, electric light bulbs, a piano, opera chairs screwed to the floor, upholstered chairs not fastened'to the floors, an office desk and chair, ticket-boxes, settees, willow chairs, a step-ladder, a baggage-truck and many other similar articles. A portion of the property was also claimed by Lansing as his individual property.
On the trial, the lower court held that by virtue of the subscriptions of the citizens to the construction of the theatre building and its furnishings, and the appropriation of such subscriptions for such purpose by the beneficiaries, and by their donation to the public of such building for such purposes, it, the public, obtained a right to the use and enjoyment of the building as a theatre, and that such act on the part of the parties was such an appropriation of all these articles to the uses of a theatre as would estop them from a divestment of the building such as would render it unfit or inappropriate for the uses'for which it was. constructed, and that all of the property therein contained was either actually or constructively annexed to, and became part of, the realty, and that it was not necessary,’ in order that title should pass to William Oliver in the sale in partition, that all said property should have been particularly described in the proceedings in partition; that Lansing is not entitled to the relief prayed for in his original petition, or in his cross-petition; that the premises were injured to the extent of $2,200 by virtue of the articles removed from
From this decree Lansing appeals, claiming that the appellee, William Oliver, has mistaken his remedy in that he has a remedy at law in replevin or for damages, that the court is without jurisdiction in the matter of retaining from the purchase-money an amount sufficient to compensate William Oliver for his alleged damages, and that the property so taken is not real estate, or appurtenant to the realty, but is personal property, the title to which did not pass by virtue of the sale in partition, and that he is owner of an undivided one-half interest therein.
As to the contention of Lansing that the court is without jurisdiction to determine the rights of the parties in this proceeding, but that William Oliver has his remedy at law either by replevin or by a suit for damages, we would say that, if any of the property removed by Lansing was a part of the real estate, the title thereto passed to said William Oliver by the sale, and, his pétition being filed in the original partition suit, it was incumbent upon the court to protect him in his rights, to see that he received all that he paid for, to put him into possession thereof, and, if, between the time title passed and the deed was -delivered and sole possession received thereunder, any injury occurred to the property by reason of the malfeasance of Lansing, it was the duty of the lower court to withhold from him a sufficient amount of the purchase-money then in its hands to compensate the purchaser for such damages.
We can not sustain the holding of the lower court that the subscription of certain citizens of Lincoln of part of the money which went to build and equip this theatre would create an estoppel as between the parties to this proceeding. Such question could only arise were such
William Oliver bought nothing but real estate at the partition sale. Although account was properly taken in such proceedings of all both parties expended in a way of erecting and equipping such theatre, nothing but re.al estate was ordered sold, and nothing but real estate would pass by such sale. It remains, then, to determine whether any of the property taken by appellant therefrom was a part of the realty, such as title thereto would pass to the purchaser at such sale, and, further, whether any of the articles which remained were personal property, and the rights of the parties thereto.
It is claimed that all of these articles are fixtures, either by actual or constructive annexation to the realty. It is easy to define a fixture, but often difficult to determine what particular article may fall within such definition. Decisions of courts are in conflict. It is unnecessary to cite any, holding either with, or contrary to, the rule already laid down by this court as early as the case of Freeman v. Lynch, 8 Nebr., 192. The rule there stated seems eminently sound, and will be adhered to by this court.
It is urged by counsel that principles of law must change with the times, and that modern progress demands that the law — those rules of law, ancient almost as our language, which define clearly real and personal property — should be so modified as to permit litigants to make almost any imaginable article real property, if it be connected with what is termed a “going concern,” that is, as we understand it, some enterprise which is being carried on as a whole, and with some particular object in view. While fully alive to modern thought and progress, we can not deem it wise or expedient, in administering justice, to so modify the common law as to depart from the ancient landmarks which have been followed by the ablest jurists of the Anglo-Saxon race throughout the centuries. Whether this theatre was a
A portion of the property taken from the building by Lansing, as well as a part that was not removed, was unquestionably personalty, and did not pass to William Oliver under his purchase, and as to such personalty Lansing was entitled to have partition.
There being no question of estoppel, and the evidence not sustaining the findings of the lower court as to some of the property in- this case, the decree is therefore reversed, and the court is directed to determine from the evidence already of record and such as may hereafter be adduced, if any, what articles in controversy are fixtures and what are personal property, according to the principles laid down by this court in said case of Freeman v. Lynch, supra, and to adjust the rights of the parties according to their interest. Henry Oliver having
For value of or damaged personal property, no compensation can be had out of the'purchase-money. As to such articles, an accounting should be had in all respects as if no other action than the suit of Lansing for partition and for an accounting had been commenced.
For the foregoing reasons the decree is reversed, and the cause remanded for further proceedings.
Reversed and remanded.