Broadus v. Smith

• Decision Date: 17 May 1899
• Parties: BROADUS ET AL. v. SMITH.
• Court: Alabama Supreme Court

26 So. 34

121 Ala. 335

BROADUS ET AL. v. SMITH.

Supreme Court of Alabama

May 17, 1899

Appeal from circuit court, Lauderdale county; Thomas R. Roulhac Judge.

Action by C. Smith against S. S. Broadus and others. There was a judgment for plaintiff, and defendants appeal. Affirmed.

The cause was tried upon issue joined upon the plea of the general issue. The evidence introduced on the trial showed the following facts: On May 15, 1890, one W. L. Reeder executed to one A. P. Wheelock a mortgage on a certain described lot in the city of Florence, on which Reeder was then erecting a building. Subsequently, on August 20, 1890 Reeder leased said building to the Alabama Banking & Trust Company by written lease, and made an oral agreement with said Banking & Trust Company, by which he was to build a brick vault in said building for the use of said company, the said company agreeing to furnish the vault doors, frames, or partitions to be placed in said vault, and said doors and frames were to remain the property of the Alabama Banking &amp Trust Company, unless Reeder should elect, at the termination of said lease, to purchase them. In accordance with this agreement, Reeder erected, as a part of said brick building a vault, which was built of brick laid in cement, the foundation thereof being laid in the basement, and built up solid through the first floor. The door frames were made of steel, with flanges on the inside and outside, and the cement brick walls of the vault were built on either side of these frames and into these flanges. The frame of the doors or partitions was a lattice work of steel bars, the ends of which were built in the cement floors, walls, and roof. The doors were so fastened to the frames that they could not be separated. In order to take the vault doors and frames or partitions from the vault, it was necessary to use pickaxes and chisels, in order to get them from the cemented walls and floors and roof. The doors and frames so built into the vault were furnished by the Alabama Banking & Trust Company in accordance with the agreement made by said company with Reeder. Reeder took notes from the Banking & Trust Company for the rent of said building. These notes were afterwards indorsed to one F. M. Perry, and, upon default being made in the payment of said notes, Perry brought a suit against the Alabama Banking & Trust Company, and sued out a writ of attachment. This writ of attachment was levied upon certain property owned by the Alabama Banking & Trust Company in the Reeder building. Among other things so levied upon, the sheriff's return mentioned "two vault doors, frames, and partitions." Perry recovered judgment in said suit and execution was issued thereon and levied upon certain property of the defendant, among which was mentioned "2 vault doors, frames and partitions." The property so levied upon was sold on May 10, 1892, and C. Smith became the purchaser thereof. The said two vault doors and frames remained in the building until the fall or winter of 1897, at which time Wheelock foreclosed his mortgage, and purchased the building at said sale. He then sold, through his agent, the said vault doors and frames to the Merchants' Bank of Florence, and S. S. Broadus, the cashier, removed the said doors and frames, and was in possession of them at the time of the institution of this suit. Reeder as a witness, and G. W. Porter, the sheriff who made the levy of the execution, testified that the two doors and frames levied upon were the same property involved in this controversy, and were the same sold by the sheriff to said Smith, the plaintiff, under said levy. The defendants objected to this testimony, and moved the court to exclude it, upon the ground that said property sued for is not described in said levy, and is not competent to prove a levy and sale under execution by parol. The evidence showed that the property involved in this controversy was worth from $125 to $150. The court overruled these objections and motions, and to this ruling the defendant duly excepted. The cause was tried by the court without the intervention of a jury, and upon the hearing of all the evidence the court rendered judgment for the plaintiff, assessing his damages at $138. To the rendition of this judgment the defendants duly excepted. The defendants appeal, and assign as error the several rulings of the trial court upon the evidence, and the rendition of judgment in favor of the plaintiff.

John T. Ashcraft, for appellants.

Simpson & Jones, for appellee.

DOWDELL J.

Under the undisputed evidence in this case the question of fixtures vel non, depending merely upon the intention of parties as implied from the nature and purpose of the article affixed to the realty, or from the conduct of the parties before and subsequent to affixing, does not arise. Nor is there any question of intervening rights of innocent third parties. The evidence without conflict shows that there was an...