Clore v. Lambert
| Decision Date | 11 December 1879 |
| Citation | 78 Ky. 224 |
| Parties | Clore v. Lambert. |
| Court | Kentucky Court of Appeals |
1. In no case will a chattel annexed to the freehold by the vendee after his purchase become as to the vendor a part of the realty, and subject to his lien, unless it was so intended by him, or unless it has been so incorporated into the realty that it cannot be removed without injuring the property, and thereby diminishing the vendee's security.
2. Chattels annexed to the freehold prior to the execution of a deed or mortgage, which are essential to its enjoyment, will pass by the deed, and be subject to the vendor's or mortgagee's lien, although not mentioned in the conveyance.
3. But if they are attached to the realty by the vendee or mortgagor after the execution of the deed or mortgage, and are not mentioned therein, they will not be subject to the lien unless so attached that a removal will impair it.
4. The pleadings and evidence are sufficient to authorize the court to reform the contract.
APPEAL FROM HENDERSON COURT OF COMMON PLEAS.
MESSRS W. LINDSAY AND H. F. TURNER FOR APPELLANT.
1. The machinery erected by Clore & Clay was erected after appellee's conveyance to them. It changed a tobacco warehouse into a planing-mill. It was not mentioned in the deed, and was, after appellant's purchase of it under execution, taken from the freehold without injury to it, and without impairing appellee's lien for his purchase money.
2. It never was subject to appellee's lien; it was not agreed that it should be so, and no intention by either vendor or vendees was ever expressed to that effect.
MESSRS VANCE & MERRITT AND MALCOLM YEAMAN FOR APPELLEE.
1. The machines mentioned in the judgment were fixtures, and subject to appellee's lien.
2. The lien of a vendor, by virtue of his deed, does not differ from that of a mortgage. He has the right not only to subject fixtures to the satisfaction of his lien, but also to prevent their removal from the realty.
Appellee sold and conveyed to James F. Clay and J. O. Clore a house and lot in the city of Henderson, reserving a lien for the purchase money. At the time of the purchase Clay and Clore contemplated converting the building into a planing-mill, which fact was known to appellee, but no agreement was had that the property should be used for that purpose. Subsequently the vendees made some addition to the building and placed therein an engine and machinery, suitable to the purpose contemplated at the time of the purchase, and attached it by bolts and screws to the building. While the machinery was thus attached appellant purchased it at execution sale and removed it, and in doing so tore up a portion of the floor, which he replaced, and removed a portion of one wall, but left the building in substantially as good condition as when the sale to Clay and Clore was made and as it was before the removal of the machinery; but this detachment and removal of machinery was not until after appellant had instituted his suit to enforce his lien for the purchase money--claiming that the machinery in controversy was embraced in his lien. The court below adjudged that the lien of appellee extended to the machinery. The correctness of that ruling is the principal matter of inquiry on this appeal.
The deed expresses the consideration to be eighty-five hundred dollars, to be paid at the expiration of ten years, with interest, and concludes: " But it is expressly agreed and understood between the parties hereto, that a lien is to be retained on said property until the whole of the purchase money is paid, and the parties of the second part bind themselves to keep the house situated on said lot insured in solvent companies for two thirds of its value."
We have carefully examined all the cases cited by counsel for appellee and find that they may be divided into four classes, to-wit:
1st. When the question arises as to what things attached to the realty, at the time of sale, pass as between vendor and vendee;
2d. As to what property attached to the land at the time of the execution of a mortgage is embraced by it;
3d. As to what things attached by the mortgagee, subsequent to the making of the mortgage, will be considered fixtures as between mortgagor and mortgagee; and
4th. As to question arising between landlord and tenant in reference to fixtures placed on the land by the tenant.
In none of the cases, to which our attention has been called, does the exact question here presented appear to have been considered. The cases as to what passes by an absolute sale have reference to the things attached to the realty at the time of the sale, and the questions as to the respective rights of the mortgagor and mortgagee appear to have arisen in states where the mortgage is held to vest the fee in the mortgagee; and even among the authorities on these questions, both in England and America, there is such a conflict that the rights of the parties are difficult to be determined either upon reason or by the weight of authority.
2d. Appropriation or adaptation to the use or purpose of that part of the realty with which it is connected.
3d. The intention of the party making the annexation to make the article a permanent accession to the freehold, this intention being inferred from the nature of the article affixed, the relation and situation of the party making the annexation, and the policy of the law in relation thereto, the structure and mode of the annexation, and the purpose or use for which the annexation has been made.
Of these three tests, the clear tendency of modern authority seems to be to give pre-eminence to the question of intention to make the article a permanent accession to the freehold, and the others seem to derive their chief value as evidence of such intention."
On page 42 in the same chapter it is said:
" Inasmuch as it requires a positive act on the part of the person making the annexation to change the nature and legal qualities of a chattel into those of a fixture, it is quite generally considered that the intention to make the article a permanent accession to the realty, must affirmatively and plainly appear; and if it be a matter left in doubt or uncertainty, the legal qualities of the...
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... ... property, and thereby cause a diminution of the mortgage ... security, which is not shown. Clore v. Lambert, 78 ... Ky. 224. The evidence does not show that the land upon which ... the ice plant machinery is situated is covered by either ... ...
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...mode of the annexation, and the purpose or use thereof. Morrow Mfg. Co. v. Race Creek Coal Co. et al., 222 Ky. 807, 2 S.W.2d 662; Clore v. Lambert, 78 Ky. 224; Bank Louisville v. Baumeister, 87 Ky. 6, 8, 7 S.W. 170, 9 Ky. Law Rep. 845; Reyman v. Henderson National Bank, 98 Ky. 748, 34 S.W. ......
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Young v. Hill
...mode of annexation, and the purpose or use thereof. Morrow Mfg. Co. v. Race Creek Coal Co. et al., 222 Ky. 807, 2 S.W. (2d) 662; Clore v. Lambert, 78 Ky. 224; Bank of Louisville v. Baumeister, 87 Ky. 6, 8, 7 S.W. 170, 9 Ky. Law Rep. 845; Reyman v. Henderson National Bank, 98 Ky. 748, 34 S.W......
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...annexation ... the structure and mode of the annexation, and the purpose or use for which the annexation has been made." Clore v. Lambert , 78 Ky. 224, 227 (1879). The first two tests—annexation and adaptation—are used in determining a party’s intention. Doll , 24 S.W.2d at 948. "If [the it......