177 S.W.2d 398 | Ark. | 1944
Appellant seeks to reverse judgment of the circuit court for appellee in an action in replevin brought by appellant for a 22-foot Howe platform scales apparatus located on the north half of lots 175 and 176 of block "R," in Magnolia, Arkansas.
The scales were installed by B. A. Warren and appellant while they were engaged in business together, a three-fourths interest in the lot being owned by Warren and a one-fourth interest therein being owned by appellant. Thereafter the partnership was dissolved and on February 22, 1939, appellant executed a warranty deed, without any reservation, conveying its one-fourth interest in this lot to Warren. On March 3, 1939, Warren and appellant signed a written agreement reciting that these scales belonged to appellant, that appellant might move them at any time and that appellant would repair any *749 damage done to the premises by such removal. This agreement was not acknowledged or recorded.
Warren died, and thereafter his widow, who acquired the lot and building, sold and conveyed same to C. C. Taylor for $1,190, and it is not claimed that any reservation of the scales was contained in her deed to Taylor. Taylor sold the property to appellee, and executed to appellee a warranty deed therefor, without reserving the scales. Taylor testified that Mrs. Warren advised him that the scales belonged to appellant and that he so informed appellee. Appellee denied that Taylor gave him any such information, and testified that he would not have purchased the property without the scales. Appellee was somewhat corroborated by R. W. Henderson, who testified that he helped make the trade between Taylor and appellee and that he heard nothing said by Taylor about the scales being reserved.
The building on the lot conveyed by Taylor to appellee was a one-story frame structure, with an open shed along one side. Under this shed was a pit, about two feet deep, twenty-two feet long and eight feet wide with concrete floor and walls. Over this pit was constructed the platform for the scales, which rested on iron beams, and was connected by a perpendicular rod through the floor, with the scalebeam, a horizontal bar about three feet from the floor of the house, on which bar, by moving a sliding weight until a balance was shown, the weight of the load on the platform was indicated. On the same side of the house and just above the platform there was a window through which the registration of the weight could be seen from the outside. To the rear of the scales platform there was a large sliding door in the wall of the building.
For reversal of the lower court's judgment appellant argues: First, that the scales apparatus was not so affixed to the soil or to the store building on the lot as to make same apart of the realty, and that title thereto was not, therefore, transferred by the deed of Mrs. Warren to Taylor, or by the deed from Taylor to appellee; and, second, that appellee had actual and constructive *750 notice, at the time of the purchase of the property, that the scales belonged to appellant, and that appellee, therefore, was not an innocent purchaser.
We have here, therefore, a situation in which apparently the building was originally constructed or afterwards altered for the purpose of having these scales become an integral part of the improvement on the lot. The question as to whether scales of this kind become fixtures or remain chattels after being erected has been considered in several jurisdictions. We think the weight of authority is to the effect that such scales, in the absence of an agreement to the contrary binding on all parties to be affected, become fixtures, and that title thereto passes on conveyance of title to the land on which they are erected.
"Platform scales fastened to sills laid upon a brick wall set in the ground, intended for permanent use, are fixtures." Thompson on Real Property, 214 and 227.
In the case of Bliss v. Whitney, 85 Am. Dec. 745 (9 Allen, 114), the Supreme Court of Massachusetts held (headnote): "Platform scales are fixture when set into soil and firmly attached to a building, so that to remove them would leave an excavation under and in front of the building, and deface the room to which the weighing *751
apparatus was fastened; . . ." Other cases in which a similar rule was announced are: Thompson v. Smith
"Ordinarily and apart from statute, an agreement preserving the character of an article to be annexed to the realty, which would otherwise be a fixture, or giving a right of removal with respect thereto, is not effective against a subsequent purchaser or mortgagee of the realty without notice." 36 C.J.S., Fixtures, 18, p. 935.
Appellant cites the opinion of the court in the case of Sessoms v. Ballard,
In the case of Dent v. Bowers,
Applying the principle announced by Mr. Justice WOOD in the case of Dent v. Bowers, supra, to the facts shown in the instant case, we are constrained to hold that the lower court correctly decided that the scales involved herein became a part of the freehold and that title thereto passed to appellee under the conveyance from Taylor to him, which was a warranty deed, without any restrictions or reservations.
In the case at bar it is stipulated that "B. A. Warren died on February 16, 1940, and his wife became the owner of the lot and that she sold said lot to C. C. Taylor, and that J. H. Dickens is now the owner thereof by virtue of purchase from C. C. Taylor." Mrs. Warren testified that she did not have any negotiations with appellee and did not know that appellee was the purchaser of the property. Mrs. Warren was paid $1,190 when she conveyed the property to Taylor. There was no evidence whatever that appellee held Taylor out as his agent or did any act from which the creation of an agency could be inferred. Under the circumstances, we hold that the testimony failed to establish that Taylor was appellee's agent. *754
Appellant also contends that appellee had actual and constructive notice that the scales did not constitute fixtures, and that, under the circumstances, it was his duty to inquire as to the ownership of the scales before purchasing the property. While Taylor testified that he told appellee at the time the trade for the property was made that appellant owned the scales, appellee in his testimony denied this and stated that he would not have bought the property if he had not believed that the scales were a part thereof. Taylor's testimony is somewhat contradictory in that at one time he stated that he did not tell appellee that appellant owned the scales until after appellee bought the property. Since the judgment of the lower court was in favor of appellee, we must assume that the court found that appellee's version of the matter was true. This finding, based as it is on substantial testimony, is binding on us. Since these scales, because of the manner and purpose of their annexation to the soil, became fixtures, there was no constructive notice to appellee that they were not a part of the realty, and no duty to make inquiry as to the ownership thereof devolved upon appellee.
No error appearing, the judgment of the lower court is affirmed.