Curry v. Schmidt

• Citation: 54 Mo. 515
• Parties: W. A. CURRY, Defendant in Error, v. FRANK SCHMIDT, Plaintiff in Error.
• Decision Date: 31 January 1874
• Court: Missouri Supreme Court

54 Mo. 515

W. A. CURRY, Defendant in Error,

v.FRANK SCHMIDT, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1874.

Error to Cole Circuit Court.

Ewards & Son, and Lay & Belch, for Plaintiff in Error.

I. These fixtures had been severed from the building, and were no longer attached to it, when it was sold under the deed of trust. The purchaser only bought what was in the building at the time of the sale, unless it was represented at the sale, and so understood by the purchaser, that these former fixtures should pass by the sale. There was no evidence to that effect. (Scott vs. Shy, 53 Mo., 478.)

Ewing & Smith, for Defendant in Error.

I. Where fixtures are detached from a building, to which they belonged as a constituent part thereof, for temporary purposes, they will pass under a general grant of the premises. These fixtures passed to Curry under the deeds from Schmidt to the trustee and the trustee to him, Curry. (3 Washb. Real Prop. [3d Ed.], 338; Farrar vs. Stackpole, 6 Me., 154; Shep. Touch., 90 · 2 Hil. Mort. [3d Ed.], 351, 352; Butler vs. Page, 7 Met., 40.)

ADAMS, Judge, delivered the opinion of the court.

This was an action of replevin for what had been fixtures in a hotel building in Jefferson City, Missouri, consumed by fire. The plaintiff claimed title to these fixtures, by virtue of a sale under a deed of trust existing on the lot and building at the time of the fire.

The deed of trust had been given more than a year before the fire occurred, and had been executed by the defendant to secure certain debts which he owed. The property was burnt on the first day of March, 1871; and during the progress of the fire, the fixtures in dispute were removed from the building and carried to another lot, and held by the defendant in his possession till the commencement of this suit.

In April, 1871, the trustee sold the real estate with the ruins as they stood on the premises, and the plaintiff purchased the same, and took a deed therefor from the trustees, describing the property bought as it had been described in the deed of trust; and under this deed he claimed title to the fixtures which had been removed during the fire. The proceeds of the sale under the trust deed paid the debts and left a surplus, which was paid over to the defendant. The only question, raised by the record and discussed here, is, whether the sale of the property in its ruined condition carried with it the fixtures in dispute. The Circuit Court refused instructions, asked by the defendant, raising this question, and decided for the plaintiff.

There can be no question at all about the general proposition, that the conveyance of real estate conveys with it all the fixtures that are attached to the property,...