Burbridge v. Therrell

• Decision Date: 01 May 1933
• Citation: 148 So. 204,110 Fla. 6
• Parties: BURBRIDGE v. THERRELL.
• Court: Florida Supreme Court

148 So. 204

110 Fla. 6

BURBRIDGE v. THERRELL.

Florida Supreme Court

May 1, 1933

Rehearing Denied May 24, 1933.

En Banc.

Suit by J. H. Therrell, as liquidator of the Bank of Bay Biscayne against Matilda F. Burbridge, a widow. From an interlocutory order striking out certain portions of defendant's answer, defendant appeals.

Affirmed.

Appeal from Circuit Court, Dade County, Worth W. Trammell, Judge.

COUNSEL

Otto C Stegemann, of Miami, for appellant.

Redfearn & Ferrell, of Miami, for appellee.

OPINION

DAVIS Chief Justice.

This was a suit in equity brought by the purchaser of property at a former mortgage foreclosure sale, seeking the foreclosure of the mortgage against Matilda F. Burbridge, the appellant who had not been made a party defendant in the first foreclosure. The appeal was taken from an interlocutory order striking out certain portions of the defendant's answer to the reforeclosure bill. Under the rule prevailing here with respect to appeals from interlocutory orders in chancery, only the matters of law involved in the order appealed from are before us for consideration. City of Palmetto v. Katsch, 86 Fla. 506, 98 So. 352.

The eliminated portion of the answer attempted to set up that, several years after the execution of the mortgage being reforeclosed, appellant, Matilda F. Burbridge, pursuant to an oral agreement between her and the owner of the fee then under mortgage, but without any showing of an agreement or knowledge of such agreement by the mortgagee, had placed upon the mortgaged land a certain cottage, a light frame structure, easily removable from the mortgaged premises, the understanding between appellant and the fee owner at the time being that said cottage should not become a fixture to the realty, but should remain the property of appellant, removable at her pleasure, said cottage having been placed on the mortgaged land and kept continuously in the possession of the said appellant during the original foreclosure proceeding and since that time.

It is held by the great weight of authority in this country that a subsequent purchaser or mortgagee of land without notice of an agreement with the owner that an annexation thereto shall not become a fixture is not bound by such agreement, being entitled to the thing annexed as apparently forming a part of the land. Cochrane v. McDermott Advertising Agency, 6 Ala. App. 121, 60 So. 421; Prince v. Case, 10 Conn. 375, 27 Am. Dec. 675; Equitable Guarantee & Tr. Co. v. Knowles, 8 Del. Ch. 106, 67 A. 961; Smyth v. Stoddard, 203 Ill. 424, 67 N.E. 980, 96 Am. St. Rep. 314; Stillman v. Flenniken, 58 Iowa, 450, 10 N.W. 842, 43 Am. Rep. 120; Rowand v. Anderson, 33 Kan. 264, 6 P. 255, 52 Am. Rep. 529; Andover v. McAllister, 119 Me. 153, 109 A. 750; Southbridge Sav. Bank v. Stevens Tool Co., 130 Mass. 547; Pabst v. Ferch, 126 Minn. 58, 147 N.W. 714, L. R. A. 1915E, 822; Union Cent. Life Ins. Co. v. Tillery, 152 Mo. 421, 54 S.W. 220, 75 Am. St. Rep. 480; Schmuck v. Beck, 72 Mont. 606, 234 P. 477; James Leo Co. v. Jersey City Bill Posting Co., 78 N. J. Law, 150, 73 A. 1046; Muir v. Jones, 23 Or. 332, 31 P. 646, 19 L. R. A. 441; Allen v. Selman (Tex. Civ. App.) 10 S.W.2d 173; Powers v. Dennison, 30 Vt. 752. But it is also held that a purchaser or subsequent mortgagee of land with knowledge of an agreement that an article attached to the realty shall remain personal property takes subject to such agreement and cannot claim the article annexed. Workman v. Henrie, 71 Utah, 400, 266 P. 1033, 58 A. L. R. 1346.

The right which the complainant describes and undertakes to assert in the bill to reforeclose the mortgage is, as against the defendant, Matilda F. Burbridge, an interest in a house considered as part of the mortgaged realty. The contention made by Mrs. Burbridge in her answer in opposition to complainant's asserted right to the house as realty is that the house referred to, and described in the answer, was not annexed to, nor a part of, the mortgaged realty, by reason of the fact that it was an improvement of a movable character, erected on the mortgagor's land under an agreement that it should remain personalty, not that, as a structure already there, it should be by agreement severed from the realty so as to become personalty.

The issue, as just stated, was tendered by the bill of complaint. And as tendered by the bill, the issue on this point was accepted by the defendant who alleged in her answer as follows:

'Further answering said bill of complaint, she says that the said cottage is a light, frame structure, resting upon temporary piers under which there is no footing, and the said structure is removable from the premises by means of rollers in a period of time not to exceed two hours, and such removal would be without any excavation in the soil and injury thereto; said cottage was erected on said lot by her for her own home with her own means under an agreement by and between her, of the one part, and Burbridge Realty Company, a corporation, of the other part, the then owner of the said lot in, to-wit, the year 1929, under the terms of which agreement it was understood by and between the parties thereto that the said cottage was not to become a fixture to the realty but was to remain her property, removable by her at her pleasure; and, since the completion of said cottage, in, to-wit, the month of December, 1929, she has always occupied, and still occupies, the same as her own home, continuously, adversely, exclusively, openly and notoriously under her own exclusive right aforesaid, and hostile, to all the world.'

Now it is undoubtedly the general rule that a building put upon mortgaged land by the consent of the mortgagor, and without the consent of the mortgagee, becomes a part of the mortgaged realty. 11 R. C. L. 1084. And also that fixtures and structures actually or constructively annexed to the realty after execution of a mortgage on the real estate become a part of the mortgaged security, so that they, while the mortgage remains in force, cannot be removed or otherwise disposed of by the mortgagor, or by one claiming under him, without the consent of the mortgagee. Ekstrom v. Hall, 90 Me. 186, 38 A. 106-107. But it is also true that a house, cottage, or other structure of a movable character, may be so placed or erected as to be and remain ab initio not a part of the realty, but personalty. Harris v. Powers, 57 Ala. 139; Foster v. Mabe, 4 Ala. 402, 37 Am. Dec. 749; Roberts v. Caple, 8 Ala. App. 444, 62 So. 343; Clements v. Morton, 200 Ala. 390, 76 So. 306.

Whether a building that has been placed upon mortgaged land without the knowledge or consent of the mortgagee shall be treated as having become a part of the mortgaged land by reason of its having thereby become an accretion to the mortgaged realty, or whether such building shall be regarded simply as a severable erection, capable of being later removed before the mortgage is foreclosed, because its removal does not depreciate the value of the mortgage security as that security existed at the time when the mortgage was given, depends upon whether or not the building, as placed or erected, is of such character that it may be inferred from the character of the structure or from the circumstances of its erection that it was placed on the mortgaged land with the intention of having it permanently remain thereon. Structures appearing to have been so erected or placed as to have become ab initio a part of mortgaged realty cannot be removed or severed thereafter, without the mortgagee's consent, notwithstanding the fact that they may have become annexed to the land pursuant to an agreement with the mortgagor that they should at all times thereafter be removable as personalty. Greenwald v. Graham, 100 Fla. 818, 130 So. 608; Seedhouse v. Broward, 34 Fla. 509, 16 So. 425.

All buildings and other fixtures actually or constructively annexed to the freehold become a part of it, and inure to the benefit of those who are entitled to it; both to a mortgagee as an increased security for his debt, and to a mortgagor to the same extent, as embracing the value of his equity of redemption. A building actually or constructively annexed to mortgaged land without the consent of the mortgagee may be sold by him as a part of the mortgaged property, and his right is not affected by the fact that the building was erected under an agreement with the mortgagor that it should be and remain the personal property of the party erecting it. The right of the mortgagee to sell the building under foreclosure sale as part of the mortgaged property cannot be affected by agreements in regard to it, to which the mortgagee was not a party, nor by notice of the claims of others given to the purchaser at foreclosure sale. Meagher v. Hayes, 152 Mass. 228, 25 N.E. 105 23 Am. St. Rep. 819; 1 Jones on Mortgages (8th Ed.) pp....