8 Colo. App. 373 | Colo. Ct. App. | 1896
delivered the opinion of the court.
W. C. Grigsby brought suit before a justice of the peace against G. B. Vaughn to recover damages for injuries to real estate. The case went from the justice to the county court, where the plaintiff had judgment. The defendant prosecutes error.
On January 15, 1893, William Cox conveyed the land to J. J. Grigsby in trust to secure the payment of $150 to the plaintiff. At the time of the execution of the trust deed there was a windmill on the land, which had been sold by the defendant to Cox. On the 31st of March, 1894, — more than a year after the trust deed was given, — the defendant received from Cox a chattel mortgage on the windmill, to
We think it clearly shown by the evidence that the mill was affixed to the soil in such manner that, taking into consideration the purpose of its erection, it was incorporated into the freehold and passed with the land. It was conveyed by the trust deed, and as against the rights acquired by that instrument, the chattel mortgage, subsequently executed, is ineffective.
It is contended for the defendant that the justice had no jurisdiction to hear and determine the controversy, because title to real estate was in volved. The statute, provides that if in any action before a justice of the peace, relating to real estate, it shall appear that the title' or boundaries are in dispute, the justice shall certify the cause and transmit the papers to the district court of the same county. Gen. Stats., sec. 619. It is argued for the defendant that as the plaintiff claimed the windmill as real estate, and the defendant claimed it as personal property, therefore the title to real estate was in dispute. We do not think that the controversy over the character of this property involved a dispute concerning title to real estate within the meaning of the law. Cox’s title to the land is not questioned, nor is it denied that he conveyed his title to the trustee. The question was whether, as between mortgagor and mortgagee, the mill was so attached to the land as to be part of it — in other words, whether the windmill was personal property or real estate. In our opinion the objection to the jurisdiction is not well taken.
Prior to the commencement of this suit proceedings had been instituted for the foreclosure of the trust deed, and some days before the justice rendered his judgment, foreclosure had been perfected, the property sold, and a deed exe
Affirmed.