Case Information
*1 244 OFFICE OFTHE ATTORNEYGENERAL OFTEXAS
AUSTIN
8lsns w APtiae 6, rhluh read0 as follovs,
ati 6uPplltm In f&o be law&l In its se&l d aorpQretion shall lied to the State B*nldng Board ger&wlon to make a ants rillowadhe!Wunder~ sslen shall be entered amgularmt3etLng Of seia banking oarporation.6
*A banking corporation reamtlg inoorporated uWaF the laws of this State, had.zq a aa@tal etoek ef $!3S,OOO,OO, surplus OS $10~~00.00 and debeaturee outetaznW& in the
245 iionorable Lee hrady - we 2 $2 *295 .oo. It has also installed a vault door
costing at a Cost of !$SOO.OO, Venitian blinds at a cost of $71.20 and a Xeon sign at the entranae of the ouotoxers* vault at a ooet of $20.00. These items have been ndiled to the cost of tiie buildiug, nskln& a total 0P $l!J,lS9.l2, at which f'igurti the building is aarried on the books of
the bank. This hank has invested In amvablc fl.xturso a
sux equal to 15% 0P its oapltal and surplue.
alho bauk has taken the position that the built-in xarble fixtures above mentioned heving been ooustruafod on brlok walle, constitute a part of the buildlug and, therefore, are not fixturee within the plrview of Article 6j.2 above tintioned. The fame poeition ie taken tfth reference to the vault door, Venltlan blinda and Beon aigu.
*Please adv& whether or not them marble fixturea, this vault door, blinds and sign are *fAxture6i* u&thin the pur- vier of Artiole Sl2, or whether they Coustitute a part
of the bapldne house within the meanIn& oi that Statute.*
Pour inquiry ie incapable of a derin.&te or flual nn8wer one way or the other, for the reaaous hereinafter etatod.
Zhe term Vixtures*, in legal contemplation, ordinarily means thoee articles or things that are per-
uanantly attached to the laud, with the iotention that
they abould become a part thereof. Obvimely, the word
is not ueed in this muse in the bauk statute, but rather it is used in the sense ~of personal property comaonly
known aa atrade Bxture8*. These trade f?xturee may,
and In nm5t inetanoes do, con&at 0P articles ~uaaable
of perxanout attachment to the Land, but on tbs other
baud, they are llk%oi.se equally sapable of use a6 per-
sonal proyerty , with no intention whatwer of peman-
ently attaohing them to the realty.
The Biatter is not determined by any rule of physical or structural attaohment of the Pixture to the land, such #ysica.l attaobmant, and the extent aud nature thereof, aPe merely clmm5stan ocs tendlng to evtienoe the real intenti-on of the person or persons WVI%~~ the build- sa& and wery artlole mentioned 5,ng md the fixtures. by you may, preeent the proper intention, become aod be a
honorable Lee Brady - psgo 3
part of the building, and therefore a part of' the lad. On the other hand, each and avery at%iole mentioned by you, prseant such an intention , may become and be trade fixtures -- personal property -- and not a part of the buLlding in whioh thay are locatsd, and to whhioh they may even be to sop10 extent phyeloally attsohed.
Aa early as tlutchina v. tiaatsraon, 40 Tex.
661(3877) our BupFeme Court said; 'It is said, the weight of the uodern
authorities establlah the doctrine tbst the true criterion for deteradnlng whether a chattel has become an iamovabla fixture, aon- slsta in the united applfcstion of the Pol- lowing tester
"lat. has there been a real con- structive annexation of the artiole in quoa- t&on to the realty?
'26. Uaa there a fitness or adsptatlon of such article to the use6 or pzrposea of the realty with whish it is connectadt "3cz. Uhether or not it was the intsn- tion of the @rty making tha snnexation that the chattel abould beaome a permanent aaaem- alon to the freekoldt - this intention being Inferable Prom the nature of the article, the rsletion and situation of the parties interested, the policy of the law in respect thereto, the mode of annexa tion, aad plrposs or use for which the snnexation is made. "And of' thcae thrse teats, preemtaencs is to be given to the question of intention to ma&e the artiole a permanent aoseaaion to the freehold, whlls tha others are ohief- ly of value as evidanoe as to this intention. (&%311 on Fixtures, 21, 22.)" In Moody v. Aiken, 50 Tex. $a (lW73) a banksr(s safe was involvad, and while tba safe itself was not eesurad to the buflbing, it waa, however, enaloosd withln the malla of a vault in such way as it could not be remwed. tithout *4 tlonorableLeeYrady-page4
destroying the walls In part, and was thus effeotually ma&faftftau the building. In that oaee the Supreme
Vore reoent declsiohs have, however, to 803118 extent, brought order out of this
confusion, and have established for our
guidance oertain rules Sounded on reason
am oustom. These make the true test of
a removable flnture at least to depcmd not
so vaxh on the m3re taot of *a ligature, a
bolt, or a acre+ a6 upon constructive an- nexation, the intention of the party in mak-
ing the same, and the relation which the
artiole bears to the uses of the freehold.*
. The oourtfurther adds*
Wzxler the authority OS the ease OS Sutehine ve. liastereon and others aited
above, the intention of the parties be-
domes a controlling element in the detor-
m&nation of the question whether a par-
ticrular annexation has has not aeeumed
the oharaoter of a f'lxture*, and affirmed the judgment of the trial oourt, holding the safe to be peraonalty and not a part of the realty.
In the ease of Inge Y. First State Bank of Donton, 67 8. 8. (2) 217, involting a timt#-lock deer to a vault used by a bank, Juatiae Lattimore said;
*The obligation of the appellee by ita lease was to return the building
'lls it nor is.' Ue are thus relogat%d to the rules izl Hutahhs Y. bisetsrson,
46 Tex. 554, 26 &u. Rep. 266. The ru13s
therein set out, when read in the light
of bioG6.y VS. diken, 60 73X. 66, mak% it
plain that our rule of publLc polio7 and
in favor of trade and to enoourage indus-
try encoura&~ the tenant to install trade f&xturos which, if sreated for a
mere temporary purpose and without any intention on the part OS the tenant that
fame besome a p8rt of ti3 realty, and IS
ii3nwable Leo Mwdy - page 2
not so attached as to begoms a part thereof,
maybe removed. It is the intention which
is the important factor, hems tb3 erfdenoe
of the bank officials that appellee did not
Intend for the articles to beoome a part of
ths realty. This testimony was admissible,
but it was not arcluslve; *the intentton be-
lng inferable from the nature of the artiole,
the situation of the psrtios interested, the
mode of annexation, the oiroumstanosa vhioh require the installation and the use to be
made thereof.*
The court then heltl:
l Ths time lock dooraod the bank cages and windows are trade f&&urea. a~@ OS suah
the tenant is entitled to C3mwe then. It
is of no importanae that the aloeet door
(hold to be roalty) mat&he8 in appearanae the oages, but it is of importance that the
the lock door is espeoially a bank vault
doer. The one Uor is not a trade fixture,
the other Is.~
See aleo, Dallas Joint Btock Land Bank t.Lan- caster, 106 6. W1. (2) 1929) Clark YO Clark, 107 6. W. (2) 421.
Tikeae 09308 are cit.& and quotsd for the ptrpoee of empha~iziug the fact that the matter of classification of the fixture is largely if not altogether one of inten- tion . By ~intention~ we mean, of oourse, the intention of the party ,putting in or install$ng the fixture.
PI-0~3 what we have said, it followa that if the bank in question in oonstmoting its btilding plaaed or fn- stalled its narble fixtures, cages, vault door, Venetian blirxls itnii Neon oipp, intending at ttle time that these tbing,s should be a permanent part of the building, they would be such in law. This presents a queetion of fact which you are auUloriead to determine from the evidence before you. 1n this conneotion, we will say that auoh fact quea- tion should be doter&n&l from all the faots an5 circus- stanoes surrauxxiing the eitmti.on, and not alone by the mre pesmt statewmt of' the Board members who oonstrucf- *6 Pomorable Lee irr%dy - page 6
ed the building;. The faot that the bank has amried
on its books the banking house at a value to Include
the oost of these Mxtur~a , is a cogent olraumatanee
supporting the present oontention of the hank with
reseronoe to the oh%ractar of the fixtures, or in
other words, with respect to the intantion of the
b%nk at the time the building v%a constructed and
the fixtures inatall3d.
Under date of J%nu%ry 8, lQg+t, the vriter of this opinion, then counsel to the Bw Ctnmnlaeloner, advised your Department with reapeot to the statue o? % bank vault door %s % r3al fixture trod3 fixture, a oopy of shioh opinion is before us, %nd % ooy~ ot whleh you luay have if the original is hot %va&lable to you at thistime.
Trusting that what we hare said vi11 be a auf- fici3nt 3nsver to your inquiry, vs 3rs
Verytlulyyoure