Crippen v. Morrison

• Decision Date: 27 October 1864
• Citation: 13 Mich. 23
• Court: Michigan Supreme Court
• Parties: Philo H. Crippen v. John H. Morrison and others

13 Mich. 23

Philo H. Crippen v. John H. Morrison and others

Supreme Court of Michigan

October 27, 1864

April 7, 1864; April 8, 1864, Heard [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Branch circuit.

Trover for steam engine, etc.

The case was tried by the court, who found the facts, and rendered judgment upon the finding for the plaintiffs.

The facts are sufficiently stated in the opinion of the court.

Judgment of the court affirmed, with costs.

Newberry & Pond, for plaintiffs in error:

I. The nature of the property in controversy, the circumstances under, and the manner in which the same was attached to the freehold, are such as to constitute it, as between vendor and vendee, and hence between mortgagor and mortgagee of the freehold, a fixture within the overwhelming weight of authorities: 2 Smith's Leading Cases (edition 1852), 214, 15, 221; Walmsley et al. v. Milne, 8 Law Reg., 373; Winslow v. Merchants' Ins. Co., 4 Met. 306; Powell v. The M. & B. Manf'g Co., 3 Mason 459; Roberts v. The Dauphin, Dep. Bank, 19 Penn. 71; Farran v. Stackpole, 6 Greenleaf 154; Sparks et al. v. State Bank, 7 Blkf. 469; Walker v. Sherman, 20 Wend. 644; Morgan v. Arthurs et al., 2 Watts 140; Oves v. Oglesby, 7 Watts 106; House v. House, 10 Paige 158; Harkness v. Sears et al., 26 Ala. 493; Allison v. McCune, 15 Ohio 729; Rice v. Adams, 4 Har. 332; Hill v. Wentworth, 28 Vt. 428.

And as between mortgagor and mortgagor, although attached to the freehold, subsequently to the execution of the mortgage: 2 Smith's Leading Cases (edition, 1855), 254; Winslow v. Merchants' Ins. Co., 4 Met. 306; Walmsley v. Milne, 8 Law Reg., 373; also other cases above cited.

II. The agreement between Hall, the owner of the equity of redemption of the freehold, and defendants in error, under which said engine was attached to the freehold, did not, and could not, operate to prevent or save the same from becoming a fixture, and part of the freehold, as to the said prior mortgage and those claiming under it.

I. Upon principle. For nothing is more self-evident than that no man can grant to another that (either property or right) which he does not himself possess.

II. Upon authority. 1. Authorities directly in point: Frankland et al. v. Moulton, 5 Wis. 16; Richardson v. Copeland, 6 Gray 536; Preston v. Briggs, 16 Vt. 124.

2. Authorities in point by analogy: a. Holding that if one having a lien upon a chattel (such as a steam engine) permits it to be attached to a freehold which is subject to a mortgage, he loses his lien as against such mortgage: Jones v. Hancock, 1 Md. Ch. Dec., 187; McKim v. Mason et al., 3 Md. Ch. Dec., 186; Denmead v. Bank of Baltimore, 9 Md. 179; Lyle v. Ducomb, 5 Binney 585; Dutro v. Wilson, 24 Ohio 101. b. Holding that a mortgagee of the freehold, upon entering into possession under a foreclosure of his mortgage, is entitled to the growing crops: 1 Hilliard on Mortgages, 161, note c; Lane v. King, 8 Wend, 584; Shepard v. Philbrick, 2 Denio 174; Gillet v. Balcom, 6 Barb. Ch., 270; Jones v. Thomas, 8 Blkf. 428. And this, too, as against a lessee of the mortgagor: Lane v. King, supra, Jones v. Thomas, supra. c. Holding that a mortgagee of a freehold, or a purchaser of the premises under a foreclosure, cannot claim the benefit of, and is not bound by any contract made by the mortgagor relative to the mortgaged premises: Thompson v. Sommerville, 16 Barb. 469.

The statute--Comp. Laws, § 4614--forbidding ejectment by a mortgagee for the mortgaged premises until after foreclosure, was not intended to, and has not "altered the law as to the interest vested in the parties to the mortgage." It has merely affected the remedy: Phyfe v. Riley, 15 Wend. 248; Gillett v. Eaton, 6 Wis. 30; Tallman v. Ely, 6 Wis. 244; Jones v. Thomas, 8 Blkf. 431.

III. If defendants in error ever had any right as against the said prior mortgage of the freehold to remove said engine from said mortgaged premises, they were bound to exercise such right before possession was taken by plaintiff in error, as purchaser under the foreclosure of said mortgage. And having failed to do so, said engine became the property of the plaintiff in error: Taylor's Landlord and Tenant, §§ 551, 552, 553; 2 Smith's Leading Cases (edition 1855), 248, 259, 260, 261; Lee v. Risdon, 7 Taunt. 188; Lyde v. Russell, 1 Barn. & Adol., 394; Colegrave v. Dias Santos, 2 Barn. & Cress., 77; Weeton v. Woodcock, 7 M. & Wellsby, 14; Longstaff v. Meagoe, 2 Ad. & Ellis, 167; Raffey v. Henderson, 17 Ad. & Ellis, 573; White v. Arndt, 1 Whart. 91; Powell v. Smith, 2 Watts 126; Overton v. Williston, 31 Penn. 155; Stockwell v. Marks, 17 Me. 455.

IV. Defendants in error having been made parties defendant to the suit to foreclose the mortgage under which plaintiff in error claims, and the question of their right to said engine being one which might, and ought, to have been there litigated, it is res adjudicata.

Defendants in error were, as to their rights in said engine, if any they had, proper and necessary parties to said bill. Their interest was not in a chattel, but in the freehold; for the engine, until severed, was a part of the freehold; for the engine, until served, was a part of the freehold. Their interest was merely a right, as against the mortgagor, to sever it: Ferrard on Fixtures, and cases cited; Preston v. Briggs, 16 Vt. 124.

Riley & Shipman, for defendants in error:

The common law held that whatever was affixed to the soil became a part of the inheritance, and the only exception seems to have been where fixtures were erected by tenants on particular estates, under circumstances which denoted an intention to remove them, during the continuance of the estate, or at its termination: Am. Leading Cases, vol. 2, p. 746.

But the limits of this exception have been gradually extended, and even in England, barns and sheds may be erected as personal property, and removed from the land by the person to whom they belong, provided they have been erected in such a manner that they may be taken down without injuring the freehold: Am. Leading Cases, vol. 2, p. 746; Wood v. Hewett, 8 Q. B., 913.

But the American courts have been disposed to pay less attention to the nature of the structure, or the question whether it is built into, or placed upon the land, and more to the circumstances under which it was erected, and have repeatedly held that a house, or other building, will not be merged in the land on which it stands in consequence of the solidity of its structure, or the connection between it and its foundations, if the agreement of the parties, and the purposes of justice, require that the title to both be kept separate, and that the owner of the house should have the right to enter for the purpose of using it as his own, or removing it: Am. Leading Cases, vol. 2, p. 747.

This doctrine was propounded at a comparatively early period, in Wells v. Banister, 4 Mass. 514, and has been recognized and applied in a number of subsequent instances, which establish that a house erected on the land of another, in pursuance of an authority given by him, remains the property of the builder, who may maintain trover for its wrongful asportation or demolition, and he has a right to enter for the purpose of taking it away, which cannot be barred by the prohibition of the owner of the soil, or a revocation of the authority under which it was built: Am, Leading Cases, vol. 2, p. 742; Osgood v. Howard, 6 Greenleaf 452; Barnes v. Barnes, 6 Vt. 388; Doty v. Gorham, 5 Pick. 487; Fletcher v. Com. Ins. Co., 18 Pick. 419; Russell v. Richards, 10 Me. 429, 11 Me. 371; 12 Me. 462.

Campbell, J., Martin, Ch. J. Christiancy, J. did not sit in this case.

OPINION

Campbell J.:

Defendants in error brought an action of trover for the conversion of a steam engine and its appurtenances, which they claimed under the following circumstances: Francis A. Hall mortgaged certain lands in Batavia, Branch county, amounting to 572 acres, to one Hiscock, October 22d, 1856, for $ 4,000; and this money was borrowed under a verbal agreement that Hall should erect a saw-mill on the premises. On the same day Hall contracted with defendants in error to build and put up the engine in question, he agreeing to put up a suitable mill frame and engine house to receive it, and upon its acceptance to execute back a chattel mortgage on the engine, and a mortgage upon the land, which was already subject to the Hiscock mortgage. It was expressly agreed that the engine and appurtenances should continue to be the property of defendants in error, until they should receive the mortgage securities on the chattels, and on the real estate. On April 15th, 1857, these securities were delivered, the machinery having been accepted. They were properly filed and recorded, and kept alive till suit. October 10, 1857, Hiscock commenced a foreclosure suit, making defendants in error parties with the other persons interested in the land. A decree was obtained December 31, 1858, for the amount of $ 820, then due; and June 25, 1860, a further decree was obtained for installments subsequent to the first decree. Before the first decree, and in October, 1857, about two weeks after the foreclosure suit was commenced, Hiscock assigned $ 3,860.44 of the mortgage money to one William P. Morley, who was not a party to the bill. August 24, 1858, and before any decree, Morley assigned to Crippen (the defendant below, and plaintiff in error), informing Crippen that he had no interest in the machinery. December 31, 1859, Hiscock assigned the remaining interest in the mortgage to Crippen. Prior to July 26, 1858, and before Crippen obtained any interest in the mortgage, the machinery was taken down, and stored in the mill building. One Laman then became...