Biggs v. Bank of Marshfield

Citation90 Ind.App. 467,169 N.E. 71
Decision Date10 December 1929
Docket NumberNo. 13239.,13239.
CourtCourt of Appeals of Indiana
PartiesBIGGS v. BANK OF MARSHFIELD et al.

OPINION TEXT STARTS HERE

Appeal from Warren Circuit Court; H. D. Billings, Judge.

Action by the Bank of Marshfield and another against Emma B. Biggs. Judgment for plaintiffs, and defendant appeals. Affirmed.Berry & Nolin, of Fowler, for appellant.

Victor H. Ringer, of Williamsport (William R. Ringer, of Indianapolis, of counsel), for appellees.

McMAHAN, J.

This is an action by appellees against Emma B. Biggs, to enjoin the sale and removal of a McDonald pitless farm and stock scales, two galvanized water tanks, a hayfork with rope used therewith and connected with the hay carrier in a barn, and a Delco light plant with pulley machine, battery, and accessories used in connection therewith, all of which are alleged to be fixtures on certain real estate formerly owned by Stanley O. Biggs, and which he and his wife, appellant herein, sold and conveyed to Pearl J. Chandler, as trustee for the Bank of Marshfield. The plaintiffs had judgment; hence this appeal. The errors assigned are the overruling of a demurrer to the complaint and of a motion for a new trial.

[1] Inasmuch as there has been a fair trial upon the merits and all the evidence was introduced without objection, it will not be necessary for us to consider the sufficiency of the complaint. Pittsburgh, etc., R. Co. v. Rushton (1925 Ind. App.) 148 N. E. 337, 149 N. E. 652.

[2] The salient facts as disclosed by the evidence are as follows: On October 20, 1925, and for many years prior thereto, Stanley O. Biggs, husband of appellant, was the owner of about 250 acres of land in Warren county, which was used as a stock and grain farm. The main buildings are on the part known as the west farm and were occupied by Stanley O. Biggs and family. The dwelling house was equipped with electric lights, hot and cold water. The current for the lights was generated by a Delco light plant consisting of a gasoline engine and dynamo fastened with bolts on a concrete foundation in a pumphouse, the foundation having been built expressly for that purpose. This foundation was set in the ground, a hole having been cut through the floor so as to permit the construction of the foundation which extended into the ground about 3 feet. A pulley machine was also erected and constructed in the same building with pulleys for the use of belts which were used in operating the Delco light plant and in pumping water. The gasoline engine furnished the power for pumping water for the residence and for the live stock on the farm. Wires ran from the electric generator, which was connected with the gasoline engine, to the dwelling house. The generator also provided electricity for charging the storage batteries connected with the lighting system. Electric wires ran from the plant in the pumphouse to and through the outside walls through holes and into the dwelling house where they connected with the wires and light fixtures in the house. The Delco light plant, the pulley machine generator, batteries, and accessories connected therewith were a part of a system of conveniences and betterments connected with the house, outbuildings, and the water system of the house and barn lots. The farm was, and for many years had been, equipped with what is known as a pitless farm scales, the frame of which rested on concrete abutments with approaches built at each end of the platform in order to make it convenient and easy to drive on the scales. The barn, which was 60 feet long and 40 feet wide, was equipped with with a hayfork and a track and carrier near the roof, and operated by means of a long rope attached to the fork. There are two large water tanks on the farm, one of which is on the west farm and one on the east farm. The one on the west farm rests on a board foundation; the pipe leading from the pumphouse is so constructed that the water flows into a wooden box, and from that overflows into the stock tank over the top of the tank. The water for this tank is pumped by the plant located in the pumphouse. The water tank on the east farm rests on the ground, the water on this farm being pumped from a well and conveyed to this tank by means of a pipe. These tanks are part of a system provided for furnishing water for live stock on the farm so owned by Biggs. The Delco light plant, gasoline engine, pulley machines, generator, batteries, scales, water tanks, and the hayfork and the rope, used in connection with the hayfork, were worth from $500 to $550, and their removal from the farm would lessen the value of the farm to that extent. A short time prior to October 30, 1925, the Bank of Marshfield recovered judgments against Stanley O. Biggs in the sum of $5,895 which were liens on the real estate so owned by said Biggs, and which were then mortgaged to secure the payment of notes for $12,000. The land was also subject to taxes which were then delinquent. Executions had been issued against Biggs and were in the hands of the sheriff on October 20, 1925, on which day Biggs, his wife joining, by warranty deed conveyed all of the real estate so owned by him to Pearl J. Chandler, as trustee for said bank; the conveyance being subject to the two mortgages and taxes. In order to induce Mrs. Biggs to join in said deed, the bank paid her a cash consideration of $5,000. This deed gave Biggs the right to use and occupy the lands so conveyed until March 1, 1926. Mrs. Biggs owned no real estate and had advertised all of her tangible personal property except some household goods for sale on February 4, 1926, preparatory to surrendering possession of the farm and moving elsewhere. The $5,000 which she received from the bank had been invested in preferred stock in a “building industry” in Indianapolis; neither the nature of such industry nor the value of such stock being shown. When the contract was made wherein appellant and her husband agreed to convey the real estate to the trustee, appellant said they would reserve the storm windows and storm doors, which had been previously attached to the house, and in that connection referred to the fact that they were giving $500 worth of property in the light plant. Referring to the two water tanks, appellant's husband testified they were worth from $8 to...

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