Evans Mercantile Co. v. Lowry

• Decision Date: 09 November 1928
• Docket Number: 5028
• Citation: 47 Idaho 10,271 P. 934
• Parties: EVANS MERCANTILE COMPANY, a Corporation, Respondent, v. F. E. LOWRY, Appellant, And CITY OF AMERICAN FALLS, a Municipal Corporation, and A. HUMPHREY, Trustee, Intervenors-Appellants
• Court: Idaho Supreme Court

271 P. 934

47 Idaho 10

EVANS MERCANTILE COMPANY, a Corporation, Respondent, v. F. E. LOWRY, Appellant, And CITY OF AMERICAN FALLS, a Municipal Corporation, and A. HUMPHREY, Trustee, Intervenors-Appellants

No. 5028

Supreme Court of Idaho

November 9, 1928

FIXTURES-POSTOFFICE EQUIPMENT.

Postoffice furniture and equipment, such as is usually found in postoffice buildings in small towns or villages, housed in building sold under execution, held to be personal property and not part of realty and court properly restrained sale of such furniture and equipment by sheriff where it had been sold by owner.

APPEAL from the District Court of the Fifth Judicial District, for Power County. Hon. Ralph W. Adair, Judge.

Action to restrain sheriff from selling property under execution. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs to respondent.

Bissell & Bird, R. S. Anderson and A. Humphrey, for Appellant Humphrey.

Where heavy fixtures are actually annexed to a building by being screwed to the ceiling and to the floor, fitted into deep grooves cut in the walls of the building for that particular purpose and fastened there by angle-irons and screws; were purchased and installed in the building for the same use and purpose, and at the same time, the building was erected, with the intention that such fixtures should be a part of said building, and with the intent that the said building and fixtures should be and constitute a postoffice, said fixtures became a part of the realty and title thereto passed with the sheriff's sale of the building. (C. S., secs. 5325 and 9456-2; 26 C. J. 654, 658 and 730; Fratt v Whittier, 58 Cal. 126, 41 Am. Rep. 251; Beebe v Pioneer Bank etc. Co., 34 Idaho 385, 201 P. 717; 11 R C. L. 1060, et seq.; Owings v. Estes, 256 Ill. 553, 100 N.E. 205, 43 L. R. A., N. S., 675; Brigham v. Overstreet, 128 Ga. 447, 57 S.E. 484, 11 Ann. Cas. 75, 10 L. R. A., N. S., 452; Triumph Elec. Co. v. Patterson, 211 F. 244, 127 C. C. A. 612; Knickerbocker etc. Co. v. Penn Cordage Co., 66 N.J. Eq. 305, 105 Am. St. 640, 58 A. 409; First State Bank v. Oliver, 101 Ore. 42, 198 P. 920; Hopewell Mills v. Taunton Sav. Bank, 150 Mass. 519, 15 Am. St. 235, 23 N.E. 327; Capehart v. Foster, 61 Minn. 132, 52 Am. St. 582, 63 N.W. 257.)

Maurice M. Myers and F. M. Bistline, for Respondent.

The articles involved herein are not fixtures, so as to pass by execution sale of the realty; permanency of annexation being lacking. (Cunningham v. Von Mayes et al., 194 Mo.App. 56, 182 S.W. 1059.)

For cases of a similar nature see: Beebe v. Pioneer Bank, 34 Idaho 385, 201 P. 717; Boise-Payette Lbr. Co. v. McCornick, 32 Idaho 462, 186 P. 252; Bingham Co. Agr. Assn. v. Rogers, 7 Idaho 63, 59 P. 931; Anderson v. Creamery Co., 8 Idaho 200, 101 Am. St. 188, 67 P. 493, 56 L. R. A. 554; Bush v. Havird, 12 Idaho 352, 10 Ann. Cas. 107, 86 P. 529, and Key Number 15 under "Fixtures" American Digest Decennials.

BUDGE, J. Wm. E. Lee, C. J., and Givens, J. , concur. Taylor, J., and Hartson, D. J., dissent.

OPINION

BUDGE, J.

In 1915, L. L. Evans was the owner of lot 3, block 211, American Falls town site, when he constructed thereon and leased to the federal government a one-story brick building for the purpose of housing the postoffice. In accordance with the requirements of the lease the building was equipped with numerous items of furniture and fixtures ordinary for the use desired, and occupation and possession was begun and had thereunder. Thereafter in the same year, 1915, Evans conveyed the property to the Evans Brothers Land & Livestock Company.

The city of American Falls, in October, 1924, obtained a joint and several judgment against Evans, his son, and the Evans Brothers Land & Livestock Company, and among the property of the latter levied upon was lot 3. A subsequent execution issued on the same judgment, and levy thereunder was made by the sheriff on the furniture, fixtures and equipment in the building, but during the interim the Evans Brothers Land & Livestock Company executed and delivered to plaintiff corporation a bill of sale covering the postoffice furniture and equipment, and plaintiff obtained a temporary restraining order against the sale thereof, which was made permanent after trial.

The important question here for decision is the correctness of the trial court's holding that the furniture and fixtures housed in the building sold under execution to the interested appellant are personal...