Fairbanks v. Williams
| Decision Date | 27 December 1918 |
| Docket Number | No. 2237.,2237. |
| Parties | FAIRBANKSv.WILLIAMS et al. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
Where issue in trial court is whether mortgaged chattels have become affixed to the realty, and judgment of foreclosure is rendered, without a separate or definite finding on the subject, such judgment is equivalent to a finding that the chattels have not become affixed to the realty, and, there being no evidence to the contrary, the judgment is to be affirmed.
Appeal from District Court, Eddy County; McClure, Judge.
Suit by H. F. Fairbanks against D. M. Williams, B. P. Williams, and Guy Reed. Judgment for plaintiff, and B. P. Williams and Guy Reed appeal. Affirmed.
On issue whether mortgaged chattels have become affixed to realty, a judgment of foreclosure, without a separate or definite finding on the issue, is equivalent to a finding that the chattels have not become affixed to the realty.
Bujac & Brice, of Roswell, for appellants.
E. R. Wright, of Santa Fé, and J. D. Mell, of Roswell, for appellee.
This is an appeal by B. P. Williams and Guy Reed from a judgment rendered by the district court for Eddy county foreclosing a chattel mortgage.
The suit was instituted by H. F. Fairbanks, the appellee, upon a note and mortgage executed by D. M. Williams. The mortgage was upon a crude oil type engine and a centrifugal pump. Appellants were made parties, on the theory that they claimed some interest in the property adverse to appellee. D. M. Williams defaulted in the case.
Guy Reed claimed to own the engine and pump, free of the mortgage lien, on the theory that such property was attached to the realty in such manner as to become a part thereof. It was stipulated at the trial between the parties hereto that the pump was set on a pit dug around the artesian well, and that the engine was set on a concrete foundation. There is not another word in the record, so far as we have discovered, concerning the attaching of this machinery to the realty.
In Patterson v. Chaney, 24 N. M. 173, 173 Pac. 859, we said, quoting from authorities therein cited, that there are three general tests applied by the courts in determining whether an article used in connection with realty is to be considered a fixture, which are: (1) Annexation to the realty, either actual or constructive; (2) adaptation or application to the use or purpose to which that part of the realty to which it is connected is appropriated; and ...
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