Dutro v. Kennedy

• Decision Date: 05 October 1889
• Parties: DUTRO v. KENNEDY et ux.
• Court: Montana Supreme Court

9 Mont. 101

DUTRO

v.KENNEDY et ux.

Supreme Court of the Territory of Montana.

Oct. 5, 1889.

Appeal from district court, Lewis and Clarke county.

Action of claim and delivery by John M. Dutro against George S. Kennedy and Clara Kennedy. Judgment for defendants, and plaintiff appeals.

Sanders, Cullen & Sanders, for appellant.

Wade, Toole & Wallace, for respondents.

LIDDELL, J.

In order to correctly understand the points at issue in this case it is necessary to state at some length the facts involved. On the 28th of July, 1879, one Scheurman and George Kennedy were the owners in indivision of a certain mining claim situated in Lewis and Clarke county, and designated in the official survey thereof as lot “No. 54 C,” in sections 9 and 16, in township 9 N., range 4 W., commonly known as claim “No. 5” last from discovery claim on Park lode. Kennedy's interest in the claim was standing in the name of R.S. Hale, either to protect it from the pursuit of his creditors, or to secure the payment of a certain sum then due to Hale. At the same time we find that Kennedy's wife, who was a sole trader, also owned three mining claims in her own right, and they were all engaged in mining in Lewis and Clarke county. For the purpose of conducting the business, Kennedy and wife, by power of attorney, authorized Scheurman to borrow money either on sale or mortgage of the property owned by either of them at the date of the instrument. Under this power of attorney Scheurman borrowed $3,500 from one Branch on the 28th of July, 1879, and executed a note therefor, signed by himself, and with the names of Mr. and Mrs. Kennedy. The money so obtained was used by George Kennedy in paying off his creditor, Hale, who on the 1st of August, 1879, at the former's request, made a title of Kennedy's undivided half interest in the claim (No. 5) to Scheurman; and on the 12th of August, 1879, the latter executed a mortgage on that lot and the property of Mrs. Kennedy for the purpose of securing the note which Branch held for $3,500. The mortgage was intrusted to Scheurman for registry in Lewis and Clarke county, and he in turn allowed Kennedy to obtain possession of the instrument, by whom it was destroyed. Branch institutes suit against Scheurman, Kennedy, and his wife, but during the pendency of the litigation transferred his interests therein to Dutro, the present plaintiff, who successfully prosecuted the suit to a final judgment.

Now, the act of mortgage being destroyed, it becomes necessary to establish the contents, and upon what property it operated; and to that end the trial judge found that “the mortgage was executed in the usual form, upon the whole of claim No. 5, and embraced and covered the tools and machinery thereon, consisting of a steam-engine for operating, and the hoisting works, pumps, etc., and also lots 1, 2, and 3, belonging to Mrs. Kennedy. After the execution of this mortgage the defendants placed a lot of new machinery upon claim No. 5, consisting of a boiler, engine, pump, drum, hoisting works, and connecting pipes. The boiler was set in brick and stone work, and the engine was placed upon a foundation of masonry and timber let into the ground about six feet, and securely fastened thereto by 16-inch iron bolts, which passed through the foundation. The pump does not appear to have ever been securely fastened to the realty, but the rest of the machinery was all in place, and used for the purpose of working the mine.

This machinery was on the mine when the decree was rendered foreclosing the mortgage, and it was also on the property and in place when the mine was sold at sheriff's sale to the plaintiff for $5,502.03 on the 12th of August, 1885, and at that time no objection was made to the sale of the machinery, either because it was not specifically mentioned in the mortgage or for the reason that it was not a fixture. Matters remained in this condition until a short time before the delays expired within which the right of redemption might have been exercised, when the defendant George Kennedycaused the masonry around the boilers to be torn down, with a view to removing the same, and actually removed the engine, first cutting the 16-inch bolts by which it...