97 Kan. 464 | Kan. | 1916
The opinion of the court was delivered by
The St. Marys Machine Company sold two gas engines to the Iola Mill & Elevator Company, under a written contract providing that title should remain in the vendor until the purchase price was paid. Payment was not made, and the seller brought replevin for the engines, which in the meantime had been set up and bolted to concrete bases in a building erected by the buyer. Caroline Frantz, who by a sheriff’s deed had acquired title to the building, intervened and claimed the engines as a part of the real estate. The plaintiff recovered, and the intervenor appeals.
The sheriff’s deed was based upon a judgment foreclosing
(1) The engines were not made a part of the real estate by merely depositing them in the building. To change their character as personalty it was necessary that they should be set up and permanently attached. The contract reserving to the machine company the title to the engines had no validity as against any one acquiring a claim upon them before it was filed for record. But no claim to them was asserted except by virtue of proceedings which affected only real estate, and irrespective of the contract they were personal property until they.were set up and bolted to the floor, in December, 1910. Before this time the contract had been made of record, and being thereby validated, it prevented their, becoming a part of the realty so as to be subject to any then existing lien. These conclusions are not only consistent with what has been decided in a somewhat similar case, but are regarded as following from what was there said. (Geppelt v. Stone Co., 90 Kan. 539, 135 Pac. 573, 94 Kan. 560, 146 Pac. 1157.)
(2) While there is some conflict on the subject, we think the better view, as well as that supported by the weight of authority, is that a valid agreement between the owner of personal property, who is guilty of no misconduct or concealment, and the owner of the real estate to which it is annexed, that its character as personalty shall not thereby be affected, binds not only these parties, but all other persons, unless an exception be made in favor of purchasers for a valuable consideration without notice. (19 Cyc. 1050-1055; Note, 49 L. R. A., n. s., 396.) A buyer of land sold at a sheriff’s sale may
The judgment is affirmed.