David G. Janes Co. v. Weed

• Decision Date: 07 March 1934
• Parties: DAVID G. JANES CO. v. WEED ET AL.
• Court: Wisconsin Supreme Court

214 Wis. 402

253 N.W. 181

DAVID G. JANES CO.

v.WEED ET AL.

Supreme Court of Wisconsin.

March 6, 1934.

Dissenting Opinion March 7, 1934.

Appeal from a judgment of the Circuit Court for Racine County; E. B. Belden, Circuit Judge.

Action by David G. Janes Company against David G. Janes Company, as trustee, and Edward T. Weed and another. From a judgment for plaintiff, Edward T. Weed and another appeal.--[By Editorial Staff.]

Affirmed.

NELSON, J., dissenting.

This action was commenced on May 11, 1932, to foreclose a land contract upon the premises described in the complaint. The right of the plaintiffs to a foreclosure judgmentis conceded. The controversy arises with respect to certain bowling alleys installed upon the premises by the purchaser. By judgment entered on November 30, 1932, the court determined that the alleys were subject to the lien of the plaintiff and enjoined the defendants from removing the same from the premises, from which judgment the defendants Weed et al. appeal.

On July 16, 1926, the plaintiff entered into a contract with the defendant, Edward T. Weed, for the sale of the premises therein described for the sum of $24,900. The contract contained a provision to the effect that, when the principal sum was reduced to $15,000, a deed would be given whereupon the purchaser should execute a mortgage “secured by the parcel hereinafter described and the bowling alleys and their equipment located thereon.” The plaintiff also agreed as a part of the contract of sale to erect a building upon the premises suitable for bowling alleys according to plans and specifications, said building to be completed on or before August 15, 1926. The contract contained the usual clauses with reference to insurance, payment of taxes, right of re-entry, and forfeiture of payments. The building was erected according to the agreement and eight bowling alleys installed.

At the time the foreclosure action was begun, there was a chattel mortgage upon the bowling alleys to secure the payment of $3,500. The defendants Weed and the chattel mortgagee threatened to remove the alleys from the premises under the claim that the same were personal property and not subject to the land contract. The court found against the defendants, held the bowling alleys to be subject to the land contract of the plaintiff, that the defendants had no right to remove the same, and judgment was entered accordingly.

Wilbershide & Baumblatt, of Racine, for appellants.

Hand & Quinn, of Racine, for respondent.

ROSENBERRY, Chief Justice.

[1][2][3] So far as the contention made by the appealing defendants that the bowling alleys were not so affixed to the realty as to become a part thereof, this case is ruled by Brunswick-Balke-C. Co. v. Franzke-Schiffman R. Co., 211 Wis. 659, 248 N. W. 178. The building in this case was erected especially to accommodate the bowling alleys, and the alleys were affixed to the realty in the same way that they were affixed in the Brunswick-Balke-C. Co. Case. It is claimed, however, on behalf of the appellants, that the plaintiff always regarded the bowling alleys as personal property. This claim is based upon the fact that by the terms of the policies of insurance, which were taken out originally by Weed, the bowling alleys were separately insured, and upon the further fact that, on March 19, 1931, the defendant Weed attempted to make a sale of the bowling alley equipment to one Melik, upon which contract Melik paid down $50, which amount was credited by the plaintiff upon the purchase price of the premises. The proposed sale fell through, and it is argued that the acceptance of the $50 payment in some way operated as a severance so as to estop the plaintiff from claiming that the alleys in question were so affixed to the real estate as to become a part of it. It is considered that these circumstances have very little, if any, significance. The fact that a seller having a lien upon property might consent to a severance upon payment of the value of the severed property in no way disturbs his right as it existed prior to the making of the proposed arrangement, and the trial court correctly so concluded.

In the view which we take of the case it is not necessary for us to consider other questions raised.

Judgment affirmed.

OWEN, J., took no part.

NELSON, Justice (dissenting).

As I disagree with the opinion of the court I shall state the reasons for my dissent.

In the first place I agree that the bowling alleys were actually physically annexed to the real estate. But annexation is only one of the factors to be considered. Whether articles are fixtures is determined by (1) their actual physical annexation to the real estate, (2) their adaptability to the use and purpose to which the realty is devoted, and (3) the intention on the part of the person making the annexation to make a permanent accession to the freehold. Taylor v. Collins, 51 Wis. 123, 8 N. W. 22;Gunderson v. Swarthout, 104 Wis. 186, 190, 80 N. W. 465, 76 Am. St. Rep. 860;Thomsen v. Cullen, 196 Wis. 581, 599, 219 N. W. 439. This is elementary law. However, the decisions give controlling influence to the intention of the party making the attachment. As was said in Taylor v. Collins, supra: “This matter of intention is coming to be the main test in such cases and the matter of physical annexation of comparatively little importance.”

In

McRea v. Central National Bank, 66 N. Y. 495, it is said: “As between vendor and vendee, the mode of annexation is not the controlling test, the purpose of the annexation and the intent with which it was made are, in such cases, the most important consideration.”

I have no quarrel with the rule recited in 26 Cor. Jur. p. 675, upon which the plaintiff relies: “Articles annexed or structures erected by a purchaser of land who is in possession by virtue of his contract of purchase, but who has not...