126 Mo. App. 582 | Mo. Ct. App. | 1907
Action to enforce a mechanics’ lien for a part of the purchase price of hoisting machinery erected on mining property by the lessees thereof. Plaintiff, the manufacturer of the machinery, sold it to the lessees with knowledge of the fact that they intended to employ it in the operation of the mine.
Facts appearing in the record material to our present inquiry thus may be stated: On May 17, 1905, the owner in fee of certain mining property situated' in Adair county executed and delivered a lease to E. H. Scriven and Robert Caswell by which he conveyed to the said lessees the coal beneath the surface of the land described and the right to mine it for a period of fifteen years. Among the provisions of the lease are the following: “Second parties (the lessees) shall have the use of two acres of surface on said land around where the shaft is now sunk, for the purpose of handling coal »and loading the same into wagons, and may put up any
The lease was duly acknowledged and filed for record three days after its execution. On the day it was filed, the lessees conveyed by deed an undivided two-thirds interest in the leasehold to Andrew Steele, O. E. Pierson, Margaret Muir and Robert Muir. On August 4, Scriven conveyed his one-sixth interest to his co-lessees. On the 26th day of August, the lessees conveyed an undivided one-sixth interest to H. W. Riggin. On November 8th, Pierson, Caswell and Steele conveyed to W. A. Harle an undivided one-half interest, and on November 10th, Robert and Margaret Muir conveyed to said Harle an undivided one-third interest, all of which were promptly recorded, so that by these various conveyances, an undivided five-sixths of the leasehold became vested in Harle and the remaining one-sixth in Riggin.
On or about September 12, 1905, and before Harle acquired an interest in the leasehold, the owners thereof, Steele, Pierson, Caswell, Riggin and Robert and Margaret Muir, purchased of plaintiff (a corporation engaged in business at Ottumwa, Iowa) a hoisting engine and boiler, together with connections and appurtenances, and agreed to pay therefor the sum of seven hundred dollars. The machinery was received in due time by the lessees at Kirksville and hauled out to the mine where it was erected and placed in operation. Half of the purchase price was paid but the lessees failed to pay the remainder. The president of plaintiff company testified that shortly before the lien was filed, he visited the mine and saw the boiler and engine in position at the shaft. He states that “the boiler was on
The claim for lien was duly filed and it is stated therein that “a lien is claimed upon said leased premises and upon said improvements so sold and delivered and so erected upon said leased premises for the said balance of $350 and interest so due and unpaid on said account. Said Robert Muir, Margaret Muir, Andrew Steele, O. E. Pierson, Robert Caswell and H. W. Riggin were the owners as assignees of said leasehold in said lands leased to them as aforesaid, and at the time they were so erected as improvements on said leased premises as aforesaid and they were then holding said premises under a lease executed by the owner of the fee of said premises expiring about May 20, 1920.”
It will be observed that Harle, who, at the time of the filing of the lien paper, was the owner of an undivided five-sixths interest in the leasehold, is not mentioned as one of the owners thereof, but in the petition subsequently filed, he was made a party defendant arid his interest in the leasehold is attempted to be held subject to the lien therein asserted. Other facts appear in the record, but those stated control the disposition of the case. At the conclusion of the evidence, the jury, under a peremptory instruction, returned a verdict for defendant Harle, and it is from the judgment entered in his favor that the present appeal is prosecuted. As no claim is made that error was committed in the judgment as to the other parties defendant, it is not necessary to state the conclusion of that branch of the case.
One of the grounds urged by defendant Harle in
Unquestionably, the lessor and lessee may stipulate in the lease that machinery placed by the latter on the leased premises during his occupancy shall continue to be his personal property and such agreement will be enforced between the parties to the contract regardless of the nature of the attachment of the machinery to the land. If the present action were between the parties to the lease, we would hold that the agreement giving to the lessees the right to remove any machinery they might install for use on the demised premises evidenced an intention of the parties to treat such machinery as a chattel of the lessees and, therefore, that it could not be treated as a fixture to the freehold. Cases in other jurisdictions may be found in which it has been held that a provision of this nature in the lease cannot serve to change the character of the property so far as third parties are concerned, and that the vendor of machinery which the lessee attached to the premises in a manner to constitute it a fixture but for such provision is entitled to a mechanics’ lien against the machinery and the leasehold. Thus in Dobschuetz v. Holliday, 82 Ill. 371, the Supreme Court of that State said: “Whatever may have been the private agreement of the parties, it is very clear the engine when set up and attached to the realty as it was became a part of the estate the lessee had in the premises. No doubt the parties could agree among themselves they would treat the engine and other fixtures as personalty, but their private agreement could not change the character of the property so far as third parties were concerned. The engine and superstructure when attached to the soil became a part of the estate of the lessee and, unless expressly reserved, would pass to his grantee with the estate. Under the agreement of the parties, the lessee had the privilege of removing all machinery and fixtures used in and
All of this except the final conclusion may be conceded for argument (though we decided differently in Meistrell v. Reach, 56 Mo. App. 243), and still we are unable to find in the argument of plaintiff or in the authorities of which the Illinois and Iowa cases to which we have referred are typical, a sufficient reason for sustaining the lien. In Press Brick & Mach. Co. v. Brick & Quarry Co., supra, the Supreme Court, speaking through Judge Marshall, held there can be no lien “where a tenant puts in machinery under a lease which reserves to him a right of removal, for in such cases a chattel never becomes a part of the realty.” Though
What we have said necessitates the conclusion that no error was committed in sustaining the demurrer to the evidence and, accordingly, the judgment is affirmed.