Felcher v. McMillan

• Decision Date: 04 January 1895
• Citation: 103 Mich. 494,61 N.W. 791
• Court: Michigan Supreme Court
• Parties: FELCHER v. MCMILLAN.

61 N.W. 791

103 Mich. 494

FELCHER v. MCMILLAN.

Supreme Court of Michigan

January 4, 1895

Error to circuit court, Wayne county; William L. Carpenter, Judge.

Action of trover by Rebecca L. Felcher against Robert McMillan to recover for the conversion by defendant, as plaintiff's landlord, of certain articles claimed by her to be trade fixtures. Defendant and certain others had recovered judgment against plaintiff and her husband for restitution of the disputed premises, which was reversed on appeal (58 N.W 1114), and, immediately beginning a second similar action were again successful. Plaintiff then voluntarily surrendered the premises, claiming the right to remove the fixtures in question. From a judgment for defendant herein, plaintiff appeals. Affirmed. T. E. Tarsney and W. W. Wicker, for appellant.

Gray &amp Gray, for appellee.

GRANT J. (after stating the facts).

The defendant has three good defenses to the action:

1. Nearly all the articles were permanently attached to the freehold, and became fixtures, under the rule in O'Brien v. Kusterer, 27 Mich. 289, and authorities cited in the note. There is nothing in the lease nor in the subsequent transactions to show that the parties intended to treat these fixtures as personal property. The verbal or written assent by the lessors to the transfer of the lease indicates no such intention. The lessees chose to remove the pillars, the partitions, the sewers, the cement floor, and to replace them by others which they considered better suited to their business. If they chose to replace wooden pillars with iron ones, plate-glass fronts and partitions with refrigerators and mirrors solidly built in the partition walls, and to take up the sewers and floors, and replace them with others better and more expensive, the new ones do not thereby become trade fixtures, subject to removal by the tenant. The law does not permit tenants to remove fixtures which are built into the building and become a part of it. This case is nearly identical in its facts with those in O'Brien v. Kusterer, and further comment cannot make it plainer. This might not apply to the chandeliers and such articles as are temporarily attached, and can be removed by unscrewing, the removal of which would not mar or injure the walls or partitions; and by the letter of Mr. Gray full permission was given to remove these.

2. Defendant was not guilty of conversion. Mr. Felcher testified that in December, when he was attempting to remove the property, Mr. McMillan and his attorney notified him that Mr McMillan claimed it as part of the realty, and that, should he persist in the attempt to remove it, McMillan would cause his arrest. The chancery suit was immediately instituted, and the court granted a preliminary injunction. The Felchers neither answered nor moved for a dissolution, and this suit was still pending when the demand was made and this action commenced. Mrs. Felcher continued in the absolute possession and control of the property, except that she could not tear it out and remove it. The institution of the chancery suit was not an act of conversion. There can be no conversion while the party is in the actual possession of and using the property for the purpose and in the place in which it was intended. Lacey...