Cochran v. Flint

• Decision Date: 11 August 1877
• Citation: 57 N.H. 514
• Parties: Cochran v. Flint.
• Court: New Hampshire Supreme Court

57 N.H. 514

Cochran v. Flint.

Supreme Court of New Hampshire

August 11, 1877

Fixtures.

In order that the property in a chattel pass by the act of affixing it to real estate in such way only that it may be removed without material injury to the realty, it must be affixed by the owner, or with his assent.

A having in his possession machinery the legal title to which was in B, affixed it to and used it in his saw-mill, which was then under a mortgage to C, in such way that it could be removed without destruction or material injury to the building. B had no actual knowledge of the mortgage, and never consented to the annexation any further than his assent should be inferred from the nature of the property, and the use for which it was designed. Hela, (1) that B was not put upon inquiry into the state of the title to the mill so as to be charged with constructive notice of the mortgage; (2) that the act of A in affixing the machinery to the mill was not sufficient, under these circumstances, to make an annexation in law so as to subject the property to the operation of the previously existing mortgage

FROM GRAFTON SUPREME JUDICIAL COURT, TRIAL TERM

BILL IN EQUITY, by John H. Cochran against Charles M. Flint and others, praying for an injunction to restrain the defendants from taking certain machinery out of a saw-mill in Dorchester.

An answer and a replication thereto having been filed, the case was tried by the court, who found the following facts:

On March 15, 1871, the plaintiff conveyed a tract of land with said saw-mill thereon to Jones & Parks, who mortgaged it back to him to secure part of the purchase money. Said mortgage was seasonably recorded, and is still outstanding. In the autumn of 1872 Jones & Parks took out of the mill the water-wheel and saw, and put in a "Flint's Patent Saw-Mill" and a "Hunt's Turbine Water-Wheel," with the usual accompanying machinery. Said articles were procured of the defendant Flint, upon the written agreement of said Parks that they were "to remain the property and subject to the order of C. M. Flint until paid for in full." Said articles were annexed to the mill in the manner in which such machinery is usually annexed to saw-mill buildings, and they are still unpaid for.

At the time this new machinery was put into the mill, the plaintiff had no notice of the agreement that it was to remain Flint's property until paid for.

Judgment is to be rendered according to the opinion of the court at the law term.

The bill and answer, and all documentary evidence used at the trial, are made part of this statement.

Carpenter (with W. A. Flanders), for the plaintiff

I. It is suggested that an injunction will not be granted in a case like this until the plaintiff has established his right at law.

1. In considering this point, it must of course be assumed that the machinery in question is a part of the freehold, and the property of the plaintiff; and the question is, simply whether a court of equity will interfere by injunction to restrain a mere wrong-doer from tearing down and destroying a man's dwelling-house, saw-mill, or other building.

To state the question is to answer it. The injury is at the same time irreparable, and incapable of being adequately compensated in damages, in the sense in which these terms are used in the law. Lynde v. Rowe, 12 Allen 100; Jerome v. Ross, 7 John Ch. 315, 331--336, and cases there cited; Mitchell v. Dors, 6 Ves., Jr., 147; Farrand v. Marshall, 19 Barb. 380---S. C. on Appeal, 21 Barb. 409; 2 Story's Eq. Jur., secs. 927--929 and cases there cited; Robinson v. Byron, 1 Bro. 588, and notes.

2. By virtue of the conceded interest of the defendants in the machinery, they have the right to redeem. The parties stand to each other in the relation of mortgagee and mortgagor, and the case is the familiar one of an application for an injunction to stay waste. 2 Story's Eq. Jur., sec. 1017; Moulton v. Stowell, 16 N.H. 221.

3. The defendants assume to act under the license of the mortgagors and, therefore, though entire strangers to the plaintiff, will be enjoined. Hastings v. Perry, 20 Vt. 272.

II. It is suggested, also, that the case does not find distinctly that the machinery was so affixed to the freehold that it would pass with it, as between vendor and vendee; that the court cannot know how such machinery is "usually annexed."

1. The finding that the machinery was annexed to the building is sufficient,---at least, prima facie.

2. Unless it was so affixed that it would pass as between vendor and vendee, the plaintiff never had, and nobody ever pretended that he had, a shadow of any case. The court therefore plainly must have intended to find that it was so affixed.

3. If the facts do not appear sufficiently to enable the court to determine the rights of the parties, then the case should be sent back for a further hearing in order that they may be found. The case, it is to be remembered, is not the statement of the parties, but the report of the judge who tried the cause, and had all the facts before him. The plaintiff ought not to be slaughtered because the judge's report is so ambiguous and imperfect (if such be the fact) that no judgment can be rendered thereon.

III. The four following propositions are substantially conceded by the defendants, and are therefore here set down, with a citation of a few only of the very numerous authorities by which they are supported.

1. Whenever A's chattel is by him annexed to the freehold of B, without B's consent, either express or implied, that it shall remain a

chattel, and subject to removal, and in such a manner that it would pass with the freehold as between vendor and vendee, it becomes instantly a part of the realty, and as such the property of B. Lancaster v. Eve, 5 C. B. N. S. 717; Howard v. Fessenden, 14 Allen 128; Oakman v. Ins. Co., 98 Mass. 57; Baldwin v. Breed, 16 Conn. 60, 66, 67; Curtiss v. Hoyt, 19 Conn. 165, 166; Landon v. Platt, 34 Conn. 517; Washburn v. Sproat, 16 Mass. 449; Bull. N. P. 34; Fryatt v. Sullivan, 5 Hill 116; Bean v. Brackett, 34 N.H. 118, and cases there cited;---see, also, Silsbury v. McCoon, 3 N.Y. 379, and note. Though the chattel so annexed by A be the property of a third person, yet, if annexed with his assent, the result is necessarily the same.

2. If a mortgagor annex in like manner his own chattels to the mortgaged premises, they also become instantly a part of the realty, and as against him the property of the mortgagee. Butler v. Page, 7 Met. 42; Winslow v. Ins. Co., 4 Met. 306; Pettingill v. Evans, 5 N.H. 54; Belcher, ex parte, 4 Dea. & Ch. 703; Reynal, ex parte, 2 Mont. D. & D. 443; Walmsley v. Milne, 7 C. B. N. S. 115; Climie v. Wood, 3 L. R. Exch. 257; Longbottom v. Berry, 5 L. R. Q. B. 123; Pierce v. George, 108 Mass. 78.

3. If a third person annex his chattels to the mortgaged premises without the assent of either the mortgagor or mortagee to their removal, the result is the same.

To the contrary of these three propositions is to be found neither authority nor dictum. The last two are, in fact, in view of our mortgage law, mere corollaries of the first. They are also, as before stated, substantially conceded.

4. It is also conceded that a mortgagee, as well as an absolute grantee without notice, takes and holds, under his conveyance, chatels so affixed prior to the execution of his deed, although as against the mortgagor or grantor they were the property of a third party with the right to disannex and remove them. Richardson v. Copeland, 6 Gray 536; Powers v. Dennison, 30 Vt. 752; Corey v. Bishop, 48 N.H. 149, 150; Landon v. Platt, 34 Conn. 517; Prince v. Case, 10 Conn. 375; Haven v. Emery, 36 N.H. 66; Hunt v. Iron Co., 97 Mass. 279.

IV. What effect it might have upon the rights of the parties if Jones & Parks had annexed the machinery in question to the freehold, in fraud of the defendants' rights or without the defendants' assent, need not here be discussed, because the question does not arise.

Here the defendants did assent to and authorize the annexation.

1. The case so finds. It finds, in substance, that the defendants sold the machinery to Jones & Parks conditionally, and delivered it to them; whence it follows, as a legal conclusion, that the defendants authorized them to put the machinery to its ordinary and usual use. A conditional vendor, by the sale and delivery of the possession, by implication of law authorizes his vendee, so long as he permits him to retain the possession, to use and enjoy the property in the usual and ordinary way. Without such authority the possession is utterly valueless: the property might as well remain in the possession of the vendor.

"When a thing is granted, that also is granted without which the thing cannot be enjoyed." Broom's Leg. Max. 463, and cases cited.

A conditional vendee has greater rights in the property than a mere bailee for hire: he has the possession, coupled with a right to make it absolutely his own---is in fact the equitable owner of it---"possessed of all the rights which attach to and follow the possession of a chattel by its owner"---so long, at least, as he is permitted to retain the possession. LADD, J., in Pinkham v. Mattox, 53 N.H. 604--606.

By implication of law his vendor gives him authority and license to use and enjoy it, and therefore to annex it to his, the vendee's, freehold, if only, by annexation to some freehold, it can be beneficially used at all. He may ride and drive the horse, work the oxen, milk the cow, set out the apple-trees in his soil, put the fence-posts or the drain-tile in his land, the shingles, doors, window frames blinds, &c., upon his house, and the water-wheel, gearing, and machinery in his saw-mill. To this point Davenport v. Shants, 43 Vt. 546,...