Sowden & Co. v. Craig

26 Iowa 156 | Iowa | 1868

Lead Opinion

Cole, J.

1. Notice: lis pendens. — I. This action was broughtin 1865, between eight and nine years after the maturity of the note, to secure which the mortgage upon the property wag given< For the purpose of i’ebutting the presumptions arising from lapse of time, and the apparent staleness of plaintiff’s claim, as well as to show •the fact of a lis pendens in relation to the property at the - time defendant’s vendor acquired his right to the property, the record of the suit by Wood, Baker & Co. against these plaintiffs and others, was admissible in evidence. Rev. § 2842. It was error, therefore, to exclude it.

2. Acknowledgement: by attorney. II. The acknowledgment to the chattel mortgage was certified prior to the act of February 24, 1858 (Rev. § 2251-54), and when there was no statute prescribing the mode of certifying acknowledgments to instruments executed by attorney. The objections made to the certificate are, that it does not state- that the principal (Burris) appeared, nor that it is his (Burris’) voluntary act and deed. This is true. But it does, nevertheless, state the truth as to the person who appeared before the officer. It was the agent who executed the instrument, and, assuming his authority (which Burris afterward recognized, by signing the instrument himself), if it was his (the agent’s) voluntary act and deed, as he acknowledged it to be, then in law it was the voluntary act and deed of his principal. See on this point, Fulweiler v. Baugher, 15 Serg. & R. 47, 54, 55; citing Combe's Case, 9 Coke’s Rep. 76, 77 (Ireland’s Abridg. of Coke’s Rep. 273); as to ratification see Haynes et al. v. Seachrist, 13 Iowa, 455, 558.

3. Fixtures: chattel mortgage: notice: mechanic’s lien. The defendant’s vendor (Druse) acquired his title to the property under a mechanic’s lien claim. By our law then in force (Code of 1851, § 981), it was J . , ’ ° , provided, that the mechanic had “ a lien upon *• ■’ . , ■ the land, including the building, with its appurtenances, for the amount due him for work or material, against all persons except incumbrancers by judgment rendered, and by instrument recorded, before the commencement of the work or the furnishing of the material.” From the facts proven in the case, which are shown by the statement preceding this opinion, it appears, that the plaintiff’s mortgage or bill of sale upon the property in controversy, as chattels, was duly recorded at the time the mechanic commenced his work. The notice imparted by the due and proper record of such an instrument, though called a constructive notice, is just as effectual for the protection of the rights of the parties as an actual notice by the word of mouth, or otherwise. Any' other construction of our registry laws would effectually nullify them-.

The property in controversy was not, so far as the evidence shows, attached to the real estate at the time the mechanic commenced work. The record of the mortgage upon it, as chattels, was, therefore, notice to him of the rights of the plaintiffs therein. Having notice then of plaintiffs’ rights, he could not, by his own act and labor, take their property, and, by making the same fixtures upon the real estate, subordinate their rights to his. Nor would the fact that the plaintiffs had sold the property for the purpose of having the same made fixtures, and had sent their own agent or employee to aid and direct in the putting up of the machinery, operate to defeat their right. This property, it will be borne in mind, is the legitimate subject for fixtures, and is that class of property about which the law permits parties to contract so as to control, as between themselves, its character, after being affixed, making it either personal property or real estate. The mortgaging of it as personal property would, as between the parties, and those having notice thereof, make it such. Of course, a different rule would obtain, in relation to bricks, lime, boards, beams, etc., used in constructing a house; these, by such use, lose their individuality, and become absorbed in, and made a part of, rather than simply annexed to, the real estate.

• The precise point we rule in this case is, that, where the owner of real estate executes a mortgage upon chattels, which may properly be made fixtures, and subsequently affixes them to the real estate, that no person having knowledge of such facts can, by purchase of the real estate or otherwise, acquire from the mortgagor any title -to such chattels paramount to the mortgagee thereof.

What would be the rights of the parties in case the chattels were affixed before the mortgage, or where the third party acquired his title without notice of it, we do not determine.

It may not be improper for us to state that we have given to this case the most deliberate consideration, and in the light of able and searching- arguments. We have also examined in detail the numerous cases cited by counsel in their respective briefs, but we do not deem it necessary for us to review them herein. We ground our decision upon well settled principles, and are strength? ened in our conclusion by the fact that none of the cases cited are in necessary conflict with it.

Reversed.

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Dissenting Opinion

Dillon, Ch. J.

(dissenting). — In my opinion the judgment of the District Court ought to be affirmed. The record in the Wood, Baker & Co. case, to which neither the defendant or Druse, his vendor, was a party, was as to them, res inter alios acta, and, therefore, inadmissible as evidence to affect them with constructive notice or for any other purpose. This seems to me to be a plain proposition. Besides, the suit was not commenced until after the plaintiffs’ rights accrued and his work was finished.

Nor can I concur in the main point ruled in the foregoing opinion.

Bear in mind that after the chattel mortgage to the plaintiffs was made, the machinery was firmly annexed to the real estate — how firmly, see statement preceding the opinion. It is also material to remember that it was thus annexed to the realty by the plaintiffs’ consent and with their assistance. By this annexation it became part of the real estate. The plaintiffs having consented to this annexation, the machinery thus annexed became also, as to them, part of the realty. Being part of the land, it would, of course, pass to a purchaser of the land.

Suppose after such annexation, Craig, the defendant, ■had purchased the mill property, can it be maintained as law, that he would be bound, in examining the title, to examine the record of chattel mortgages ? I think not. Has he less rights by virtue of his purchase of Druse, without notice, than if he had bought the property of Burris? Druse’s purchase of the land at sheriff’s sale, when consummated by the sheriff’s deed, invested him with the title to the. real estate and to every part of it, including this machinery.

The proposition upon which I stand, and which, with deference to the opinion of my brothers, I maintain to be the law of the case, is, that by the aifixion, with the plaintiff’s consent and co-operation, of the chattels to the realty, they became by this act de faeio by operation of law, part and parcel of the land, and necessarily lost their chattel character, so that they could not be replevied as chattels, but would pass to a purchaser of the land of which they visibly constituted a paid.

The plaintiffs having consented to the conversion of this chattel property into real property, their right to claim the property as chattels under their mortgage, ceased at the precise moment of time when by their consent it ceased to be chattels and became realty. The plaintiffs might afterward enforce a mechanic’s lien, but could not replevy the property by virtue of their mortgage. Winslow v. Ins. Co., 4 Metc. 306; Richardson v. Copeland, 6 Gray, 536; Cross v. Marston, 17 Term. 533, 511; Bringholff v. Munzenmaier, 20 Iowa, 513.

. Again, the Code of 1851, in force when Druse, the mechanic, commenced and finished his work, gave him a lien in express terms upon the land, buildings and 'machinery against “ all persons except incumbrances by judgment rendered, and by instrument recorded before the commencement of the work.” (§§ 981, 982), meaning, as I hold, not chattel mortgages, but those so recorded as to be liens on the land and buildings, and machinery on which the lien is given.

■ The mechanic, as I hold, is, under this statute, not bound by constructive notice of chattel mortgages, nor by any instrument not so recorded as to be a lien upon land!

I am in favor of affirmance, but as my brothers think otherwise, the judgment below is reversed and the causé remanded for a new trial. :