62 Mo. App. 66 | Mo. Ct. App. | 1895
Plaintiff sues for damages for”an alleged breach of a covenant of general warranty in a deed made to him by defendant on February 10, 1892, conveying a town lot in Monett, on which a building was situated. The answer was a general denial. The issues were tried by the court without a jury, and a judgment rendered for plaintiff for $30, from which this appeal is taken.
“If the court shall find and believe from the evidence that one Floreth, under a lease with defendant, .put the fixtures in question in the house, reserving the right to remove the same, and afterward defendant sold the/ house to plaintiff, and then Floreth entered into a new lease with plaintiff for said house without reserving the right to remove the said fixtures, then the court declares the law to be that the fixtures became the property of the plaintiff, and he can not recover in this action.”
The' foregoing declaration of law stated a correct legal proposition, and was sustained by all the evidence. While the principle announced therein has not been directly passed upon by the appellate courts of this state, it is of undoubted soundness, and has met the approval of other courts where the facts calling for its
The first case cited was an action on a covenant of warranty, which was alleged to have been broken by the removal, by a tenant, of certain buildings which had been erected, under a lease, on a lot prior to its conveyance. It was shown that the tenant had taken a new lease, containing no provision for the removal of the structures from the purchaser of the lot. It was held that the right of removal was lost, as it had not been exercised during the former term of the tenant, and a new lease was accepted by him without any stipulation securing the right of removal. The basis of this rule is the law governing accretions to real estate, and measuring the right of the tenant to .remove such additions by the period of his tenancy. When a tenant fails to remove a fixture prior to surrender of possession under his lease, it becomes, in the absence of a further contract, an integral part of the real estate to which it was affixed and follows the ownership thereof. Lacey v. Giboney, 36 Mo. 320, So. in the present case. The tenant was entitled, at any time during his term, and before attorning to plaintiff, to remove the shelving which had been attached as a trade fixture to the building. As he did not exercise this option, but entered upon a new term under a lease with plaintiff without any contract as to the remóTál of the fixtures, they"bl^~me,"b^Up'efáU6n‘5f laW7'¥' part'of the freehold as fully as if they had been constructed and placed there by plaintiff prior to the letting. These conclusions demonstrate that there is no theory of law under which plaintiff was entitled to a judgment upon the facts shown by him. The judgment in his favor is, therefore, reversed.