28 N.J. Eq. 277 | New York Court of Chancery | 1877
The question as to the character of the rolling stock mortgaged to the complainant, whether it is personal property, or is to be regarded as real estate, as between mortgagees whose mortgage has not been filed, and execution creditors who have levied on the mortgaged property, is raised by the Lackawanna Coal and Iron Company, who recovered a judgment in the supreme court of this state against the railroad company for $42,285.68 on the 19th of January, 1874, and subsequently caused levies to be made,; under executions issupd thereon, upon the rolling stock/The rolling stock is covered by the complainant’s mortgage. That mortgage, though recorded, was not filed as a chattel mortgage, nor. was delivery made to or possession taken by the mortgagees immediately after the mortgage was made, nor, indeed, until the 1st of January, 1874, at the earliest. The judgment creditors above mentioned insist that the rolling stqck is personal property, and that inasmuch as the complainant’s mortgage was not filed according to the provisions of the act “ concerning mortgages,” (Pev. p. 708,) and was not accompanied by immediate delivery of the rolling stock, followed by actual and continued change of possession, it is, under that act, abso
There is obviously no force in the argument that there is no necessary connection between railroads and the engines and cars used thereon, seeing that there are railroad companies which own railroads but no engines or cars, and whose railroads are used b.y the engines and cars of other companies only. The relation of the cars to the' track, their special adaptation to it, and the intention of their owners, where they are also the owners of the track, that they shall be used upon it, are considerations which outweigh the suggestion that a railroad car and a locomotive engine, by themselves considered, are of course personal property. So are the stationary engine or the machine in the machine shop or place of sale, and the belting in the store where it is sold. Property which would otherwise be chattels( becomes real estate merely by attachment, by annexation, actual or constructive, for use in connection with the real property to which it is attached. In no other way is its character changed. If, as in the case before me, the owners of a railroad, intending to use it themselves for the purposes for which it was designed, shall themselves supply it with engines and cars necessary for, and therefore adapted to such use, with the intention of using those engines and cars thereon accordingly, the engines and cars may well, under such circumstances as this case presents, be regarded as part and parcel of the railroad. Said Justice McLean, in Coe v. Pennock, C. C. U. S. for the Northern District of Ohio, reported in 2 Redfield’s Am. Rail. Cases, 667: “ The railroad, like a- complicated machine, consists of a great number of parts, a combined action of which is essential to produce revenue. And as well might a creditor claim the right to levy on and abstract some essential part from
The criterion by which the question as to whether a thing which in its nature is personal property is a fixture or not, has been said by the supreme court of this state, and by this court, to be the united application of the following requisites: Actual annexation to the realty or something appurtenant thereto; application to the use or purpose to which that part of the realty with which it is connected is appropriated; the intention of the party making the annexation to- make a permanent accession to the freehold. Brearley v. Cox, 4 Zab. 287, 289; Crane v. Brigham, 3 Stock. 29; Quinby v. Manhattan Cloth & Paper Co., 9 C. E. Gr. 260, 266; Rogers v. Brokaw, 10 C. E. Gr. 496; S. C., on appeal, sub nom. Blancke v. Rogers, 11 C. E. Gr. 563. That it is not necessary that the annexation be by actual attachment to the freehold, is too obvious for illustration. The cases of keys to locks, rails laid loosely in a fence, a statue standing in a niche made for its reception in the wall of a house, a statue standing on a pedestal in a field, wild deer in a park, fishes in a pond, rabbits in a warren, doves in a dove-house, and many other illustrations, at once present themselves. Stockwell v. Campbell, 39 Conn. 362; Snedeker v. Warring, 12 N. Y. 170, and Quinby v. Manhattan Cloth & Paper Co., ubi supra, may be referred to as cases in which merely constructive annexation was regarded as sufficient. The cases on this point are collected in Mr. Ewell’s recent work on fixtures. As was said in the case last cited, the permanency docs not depend so much on the degree of physical force with -which the thing is attached as upon the motive and intention of the party attaching it. To the same effect Blancke v. Rogers, 11 C. E. Gr. 563, 568. If the engines and cars were designed to slide upon the rails, there would probably be no question raised as to their character; it would be conceded that they are part of the realty. The
The mortgagees, according to the terms of the mortgage, were to remain in possession until forfeiture. The rolling stock was mortgaged with the road, and it was fixtures necessary to the operation of the road. How, if it were conceded that the rolling stock is personal property, its necessary connection with the mortgaged real estate, the necessity which existed to use it in order to use the real estate itself, the peculiar connection between the rolling-stock and the road, are of themselves sufficient reasons for holding that the provision of the act concerning mortgages, requiring immediate delivei-y and continued possession of chattels mortgaged, or filing instead thereof, is inapplicable to such mortgages.
The complainant insists that he had possession of all the property in question at the time when the judgment was recovered, and that, therefore, if the property be regarded as personal property, he is still entitled to it as
The Lehigh Oar Manufacturing Company, in July and August, 1873, sold and delivered to the New Jersey Southern Railroad Company seventy-five box cars, at the price of $805 each, under a written contract between the two companies, dated April 7th, 1873, by which the car'company agreed to build one hundred cars for the railroad company, to be delivered at Wilmington, Delaware; the price, in the language of the contract, to be payable on delivery of each twenty-five cars, in the notes of the railroad company, at four months, with interest, with first mortgage bonds of the railroad company, at seventy per cent., as collateral security. Of the cars mentioned in the agreement, seventy-five were delivered at Earmingdale, in this state, the place designated
The wheels of the cars were furnished by the Taylor Iron Works Company, under an agreement between them and the car company, by which they agreed to take in payment, for them the same securities,- principal and collateral, in which the car company were to receive payment for the cars-under the contract between them and the railway company, [For the wheels furnished for the twenty-five cars first delivered they received from the car company in payment the notes of the railroad company, with their proportion of the collaterals. After the fifty cars had been delivered, the-ear company were informed that the bonds which they had received as collateral to the notes given for the price of the twenty-five cars, were not first mortgage bonds of the railroad company, and after the settlement on the 4th of September had been made, the president of the car company, who had acted for them in that settlement, stated to the secretary (who was also auditor) of the railroad company that he had been informed that those bonds were not first mortgage bonds, but the secretary assured him that they were, indeed, such. In November, 1873, the car company and the Taylor Iron Works Company having ascertained that the bonds, so far from being first mortgage bonds of the railroad company (which were a good security), were entirely worthless, the president of the car company thereupon determined to come to this state to demand the return of the cars, but was prevented by the illness of his wife from so doing. The president of the iron works company, however, came and made a demand on the railroad company for the return, because of the fraud in the securities, of the wheels which his company had furnished. This demand was refused. Subsequently, in the latter part of January or early in February following, the attorney of the car company made a demand on the complainant in this suit, then mort
The sale was clearly conditional, the condition being that the security provided for • in the contract should be given simultaneously with the delivery of the property. There is no evidence of waiver. “"Waiver,” says Chief Justice Shaw, in Farlow v. Ellis, 15 Gray 229, “ is a voluntary relinquishment or renunciation of some right, or foregoing or giving up of some benefit or advantage, which, but for such waiver, the party relinquishing would have enjoyed.
The delivery of the cars was by the agreement, as modified, to be at Earmingdale. They passed into the hands of the railroad company by no other delivery of possession than that contemplated by the agreement, which also provided for the security for the price simultaneously with the delivery.
Messrs. A. P. Berthond & Co. claim a lien prior to the mortgage of the complainant, under the provisions of the “Act to secure to mechanics and others payment for their labor and materials in erecting any building,” (Rev., p. 447,) for work and. materials done and furnished by them in building for the New Jersey Southern Railroad Company,, docks, wharves and piers, and a bridge and floats at the terminus of the Long Branch and Sea Shore Railroad on Shrewsbury river, a navigable river of this state, at Sandy Hook. The work was done under a contract between them and the Southern Railroad Company, made in May, 1873. It was completed on the 21st of November following. The lien claim was filed on the 23d of July, 1874, and summons was issued thereon on the 16th of October following, against the Southern Railroad Company as builders, and the Long Branch and Sea Shore Railroad Company as owners. . The lien is claimed under the tenth'section of the act, by .which the lien given by the act as it stood originally was extended to all docks, wharves and piers erected upon any navigable river in this state, and to the lots of land in front of which such docks, wharves or piers may be erected, and to all the interest of the owner or owners of such land in the soil or
Besides the construction at Sandy Hook, the contract provided for other works — a bridge and float on the Delaware, at Smyrna, in the state of Delaware, the terminus of the Smyrna and Delaware Bay Eailroad, and a bridge and float at Bayside, the terminus of the Yineland Eailroad. The complainant insists that these latter works were ultra vires, and that none of the payments made on account of the contract can lawfully be appropriated to payment therefor. But it appears that the Southern Company, in making payments to the contractors, took receipts from them for the money as having been paid on account, without designating in the receipts the work to which it was to be applied, and the company themselves made appropriation of the money. In such case, where the appropriation is by the debtor, the payment is valid, notwithstanding the existence of legal objection to the contract under which the work was done, to the payment for which it was applied. Story’s Eq. Juris., § 459b; Rohan v. Hanson, 11 Cush. 44. A further objection is made, that the lien is invalidated by a misstatement as to the amount 'due on the claim. The act provides that any willful or fraudulent. misstatement of any of the matters required to be inserted in the bill of particulars shall discharge the premises from the lien. I see no evidence of any willful or fraudulent misstatement in this case. There is a misstatement, however. A large sum of money which was paid on account of the work and materials, and which should have been credited, has not been credited; but this is evidently due to a want of knowledge as to the appropriation of the payments made on the contract. It is further insisted by the complainant that there is no evidence of the written consent of the legal owner, the Long Branch and Sea Shore Eailroad Company, to the work at Sandy Hook, which consent is, under the act, necessary where the work is not done by the owner. Rev. 670, § 10.
A claim is made on behalf of the state for unpaid taxes upon the property of the Southern Railroad Company for the years 1873, 1874 and 1875, with interest thereon. It is made under the act “ to establish just rules for the taxation of railroad corporations, and to induce their acceptance and uniform adoption,” approved April 2d, 1873. P. L. 1873, p. 112. That act provided that all taxation upon all railroad companies occupying and using railroads in this state, whether as lessees or otherwise, should thereafter he made as follows: First, such companies should pay upon the cost, equipment