Cherry v. Arthur

• Decision Date: 23 February 1893
• Citation: 32 P. 744,5 Wash. 787
• Parties: CHERRY ET AL v. ARTHUR ET AL.
• Court: Washington Supreme Court

32 P. 744

5 Wash. 787

CHERRY ET AL v. ARTHUR ET AL.

Supreme Court of Washington

February 23, 1893

Appeal from superior court, Pierce county; F. Campbell, Judge.

Action by C. C. Cherry and C. R. Parkes against J. M. Arthur, doing business as J. M. Arthur & Co., George E. Youle, Tabor A Sherman, and Angelett J. Sherman, to restrain defendants from removing certain sawmill machinery. Plaintiffs obtained a decree. Defendants Arthur and Youle appeal. Reversed.

Greene & Turner, for appellants.

Stevens Seymour & Sharpstein, for respondents.

STILES, J.

Respondents Sherman made to respondents Cherry and Parkes a mortgage of certain real estate, "together with the sawmill machinery, outbuildings, appurtenances, and fixtures of any and all kinds belonging to the same." Among the machinery in the mill was a planer, which was bolted to the floor in such a way as to keep it from moving from its place when being used. Its only connection with the motive power was by a belt over a pulley wheel. This planer had been delivered to Sherman by appellant Arthur under a conditional sale contract, which was effectual to retain the title in appellant, as between him and Sherman, ( De Saint Germain v. Wind, 3 Wash. T. 189, 13 P. 753; Dodd v. Bowles 3 Wash. T. 383, 19 P. 156,) whether it were fastened to the building or not, so long as it did not become a part of the realty. In ascertaining whether such a machine does become part of the realty in favor of mortgagees the rule is that the manner, purpose, and effect of annexation to the freehold must be regarded. If a building be erected for a definite purpose, or to enhance its value for occupation whatever is built into it to further those objects becomes a part of it, even though there be no permanent fastening such as would cause permanent injury if removed. But mere furniture, although some fastening be necessary to its advantageous use, is removable. Peculiarly subject to this rule are machines which can be used in one place as well as another, and which add nothing to the building, though they may be of advantage to the business conducted there, and we think the planer in this case is of the class mentioned, ( McConnell v. Blood, 123 Mass. 47,) especially as Cherry and Parkes were not mortgagees for value, but to secure a pre-existing debt. But a point is made that the appellant had taken other security for the unconditional payment of the price of the planer,...