Burpee v. Athens Production Credit Ass'n

• Decision Date: 10 June 1941
• Docket Number: 28959.
• Citation: 15 S.E.2d 526,65 Ga.App. 102
• Parties: BURPEE v. ATHENS PRODUCTION CREDIT ASS'N.
• Court: Georgia Court of Appeals

15 S.E.2d 526

65 Ga.App. 102

BURPEE v. ATHENS PRODUCTION CREDIT ASS'N.

No. 28959.

Court of Appeals of Georgia, Division No. 1.

June 10, 1941

Rupert A. Brown, of Athens, for plaintiff in error.

Tolnas & Middlebrooks, of Athens, for defendant in error.

MacINTYRE Judge.

A suit was brought by the plaintiff against the defendant for a certain furnace and appliances described as follows "One Sunbeam No. 24 Steel Furnace of the value of $240.00 and one Stokol Stoker Model No. DF 12463-2 of the value of $245.00 which are in the possession, custody and control of said defendants as hereinafter set forth. Said property has not lost its identity and can be identified by name and number indelibly impressed thereon." The right of recovery relative to the question here raised was based on the allegations of the petition which in effect stated that one Driver borrowed money from the plaintiff. To secure the loan, Driver gave the plaintiff a security deed to certain land of his in Oconee County Georgia, which deed described only the land. There was a house on the land in Oconee County to which was attached the furnace and appliances in question in the following manner "Said furnace was installed in a pit or basement excavated under said house for the same and connected to said dwelling, by piping or flues extending through the floors and basement of the dwelling where openings had been sawed and covered with gratings. The stoker was installed on the floor of said basement and the burner thereof extended into the furnace by removing the grates and removing the ashpit door therefrom, the burner being slipped in the ashpit door and secured in the furnace, the space around the burner box at the ashpit door being sealed by placing around the furnace box brick and mortar." No mention was made in the security deed of the house or furnace. Driver remained in possession of said property and, while still in such possession, detached and removed said furnace and appliances from said house in Oconee County to another house of his on land owned by him in fee simple and located in Clarke County, Georgia, without the consent of the plaintiff. After removing the furnace and appliances and attaching them in like manner to the house in Clarke County, he sold this house and land to the defendant and no mention was made of the furnace in this deed. Driver was in default in payment of the note secured by the land in Oconee County described in the security deed. The plaintiff then foreclosed the security deed under power of sale in said deed and purchased said land for himself at public outcry. The transaction was insufficient to pay off Driver's indebtedness to the plaintiff and the plaintiff obtained a deficiency judgment against him, then brought the present suit against the defendant for the furnace and appliances.

To the plaintiff's petition, the material portion of which, necessary to a determination of the issues raised, is set out above, the defendant filed a general demurrer and contends that the court erred in not sustaining it on the ground that "no cause of action was set forth in the petition for at least two reasons. First, the furnace and stoker never became real estate so as to pass under the security deeds held by the defendant in error [plaintiff]. Second, if these articles did become real estate, the record of the security deeds conveying land in Oconee County, Georgia, was not constructive notice to the plaintiff in error when he purchased real estate in Clarke County, Georgia, of any claim that Athens Production Credit Association [plaintiff] had in and to the furnace and stoker." The overruling of the defendant's demurrer is the error complained of before this court.

Mr. H. A. Bronson in his Treatise on the Law of Fixtures (published in 1904) states: "There are three ways by which the term 'fixtures' may be defined: First, it may be considered as applying only to those chattels that have become so annexed to the realty as to be a part thereof, and consequently not removable against the will of the owner of the realty; second, it may be applied only to those chattels which though annexed to the soil may be severed and removed at the option of the one who annexed them; third, the term 'fixtures' may be deemed to embrace all those chattels which, by reason of their annexation to the land, partake both of the nature of personalty and realty, irrespective of the question whether they are removable or not." The writer of this opinion, as does Mr. Bronson, prefers the third definition of "fixtures" which defines the term in a generic sense and includes within its scope both removable and irremovable fixtures. The Supreme Court of California has given a definition which according to Mr. Bronson includes all the component elements of a "fixture" as follows: "Fixtures are chattels or articles of a personal nature which have been affixed to the land in such a way as not to lose their identity." Merritt v. Judd, 14 Cal. 59, 64. Mr. Bronson says that this definition is in accordance with the derivative meaning of a fixture, which, from the Latin affixum, meant "a thing attached to or fastened to." Bronson's Treatise, p. 5, § 1. Hence such a definition includes within its scope chattels attached physically or constructively to the realty whether they be removable or not and do not lose their identity. This third definition which the writer prefers and thinks is not in conflict with the definition of "fixtures" in our Code, § 85-105, is as follows: " Fixtures.--Any thing intended to remain permanently in its place, though not actually attached to the land, such as a rail fence, is a part of the realty and passes with it. Machinery, not actually attached, but movable at pleasure, is not a part of the realty. Anything detached from the realty becomes personalty instantly on being so detached." It is likewise in accord with Code, § 85-201, which provides in part that "Realty or real estate includes all lands and the buildings thereon, and all things permanently attached to either [irremovable fixtures whether physically or constructively attached], or any interest therein or issuing out of or dependent thereon." Indeed, this definition preferred by Bronson seems to the writer to be in accord with the decisions of our Supreme Court in McCall v. Walter, 71 Ga. 287, 290, and in Wolff v. Sampson, 123 Ga. 400, 402, 51 S.E. 335, wherein it was stated: "Whether an article of personalty connected with or attached to realty becomes a part of the realty, and therefore such a fixture that it cannot be removed therefrom, depends upon the circumstances under which the article was placed upon the realty, the uses to which it is adapted, and the parties who are at issue as to whether such an article is realty or detachable personalty." Under the said third definition, a chattel is made to partake of both the nature of personalty and realty, depending upon the way in which it was affixed or attached to the realty and the circumstances under which it was attached and the parties at issue and thus chattels which are attached to realty may partake to some extent of incidents peculiar to personalty and in other incidents partake of the nature and characteristics of realty, and it is primarily because of the dual character of chattels so attached under varying circumstances (as not to lose their identity) that a reason exists for a distinct term by which such chattels may be designated as "fixtures" to distinguish them on the one hand from mere personal property and on the other hand from mere realty.

The writer thinks that if we should adopt the third definition above quoted, we would have a separate nomenclature for chattels or personal property that do not lose their identity when attached to realty, whether under an agreement or under the circumstances...