Fisk v. People's Nat. Bank

Decision Date13 November 1899
Citation59 P. 63,14 Colo.App. 21
PartiesFISK v. PEOPLE'S NAT. BANK et al.
CourtColorado Court of Appeals

Error to district court, Arapahoe county.

Action by Mary E. Fisk against the People's National Bank and others to recover damages for the impairment of her security on certain realty by removing the improvements therefrom. From a judgment for defendants, plaintiff brings error. Reversed.

Rogers & Shafroth, for plaintiff in error.

Cass E Herrington, Fred Herrington, and H.C. Van Schaack, for defendants in error.

THOMSON J.

On June 19, 1890, Mary E. Fisk sold and conveyed to John McCain Louis F. Groth, and Ferdinand B. Becker a number of town lots in Fisk's addition to the town of Fairview, in Arapahoe county, for the sum of $23,000. Of the purchase price they paid $3,000 in cash, and executed four notes for the residue,--one for $2,000, due September 12, 1890; and three for $6,000 each, due, respectively, on the 12th day of June 1891, the 12th day of June, 1892, and the 12th day of June, 1893,--all with interest from date. The payment of these notes was secured by a deed of trust upon the premises sold, which was duly recorded on the 23d day of June, 1890. After the execution of the trust deed, McCain, Groth, and Becker placed upon the premises three brick sheds, a 75 horse power engine, two boilers, a brick machine, and certain other machinery and apparatus, to be used in the manufacture of brick. Before this machinery was placed upon the premises, these parties were indebted to the People's National Bank of Denver in the sum of $15,000; and on the 4th day of December, 1891, long after the machinery was so placed, to secure the payment of that indebtedness, they executed to Frederick Schrader a chattel mortgage of the improvements, engine, boilers, machinery, and apparatus which they had placed upon the land. On the 18th day of December, 1891, the debt to the bank being due, Schrader and the bank took possession of the property enumerated in the chattel mortgage, and caused it to be sold at public auction, the purchasers being Charles W. Larmon and Flavius N. Davis, who afterwards entered upon the premises and removed the property therefrom. On the 12th day of May, 1892, on account of default by McCain, Groth, and Becker in the payment of their second note to Mrs. Fisk, which default, by the terms of the deed of trust, authorized foreclosure for the entire indebtedness, Mrs. Fisk caused the premises to be advertised for sale and sold in the manner provided by the trust deed, realizing $4,600 from the sale, which was credited upon the indebtedness which the trust deed secured. She brought this action against Schrader, the bank, McCain, Groth, Becker, Larmon, and Davis to recover damages for the impairment of her security by the sale and removal of the improvements, machinery, and apparatus, alleging that they were so annexed to the real estate as to be part of it, and were therefore subject to the lien of her deed of trust. The answer admitted the placing upon the premises by McCain, Groth, and Becker of the articles of property described in the complaint, but denied that they were placed there as permanent fixtures or improvements; averring that they were personal property, and were put upon the land solely for the purpose of carrying on the business of manufacturing brick, and were at all times subject to removal. The answer also averred that McCain, Groth, and Becker were partners, engaged in the manufacture of brick, and that the land was sold to them by the plaintiff, and was obtained by them, for the purposes of carrying on their trade and business as partners; and that their indebtedness to the bank was for money borrowed by them to provide machinery for carrying on their business upon the property, and was spent by them in the purchase of the machinery and the erection of the buildings mentioned in the complaint. The answer further stated that Schrader and the bank were induced to proceed with the sale of the property on their chattel mortgage by the assurance of Archie C. Fisk, the agent of the plaintiff, that the plaintiff would make no further claim upon the property, and that except for such assurance they would not have sold it. The replication denied any assurance by Archie C. Fisk, and denied that he was the agent of the plaintiff, or had any authority to speak for her concerning the property. The evidence was that the boilers were placed on brick foundations, sunk in the ground, and were walled in with brick; and that the engine and brick machine were also laid on brick foundations, sunk in the ground, and attached to the foundations by iron rods or bolts. All of this machinery was massive and heavy, and the other apparatus was connected with it by proper appliances. The machinery was inclosed in buildings erected by McCain, Groth, and Becker, and was adapted to, and used in, the manufacture of brick. The brick was to be manufactured out of clay from the land sold by the plaintiff. At the time of the foreclosure of the chattel mortgage, about 5,000,000 brick had been made, and it was estimated that there was enough clay upon the land to make 100,000,000. In making these brick the land was excavated, in places, to a depth of 22 or 23 feet, and on portions of the ground the clay was 60 feet deep. In August or September, 1890, Mr. Groth, for himself, McCain, and Becker, negotiated a loan at the People's National Bank of $5,000, stating that they wanted the money to buy a boiler, engine, and other machinery, and proposing to give the bank a chattel mortgage on the property whenever the bank might ask for it. Of the money loaned, $2,000 was placed to their credit first, afterwards $2,000 more, and subsequently the remaining $1,000. They drew checks against this money, together with other moneys deposited by them, for all purposes. Afterwards they ordered more machinery, and applied to the bank for a further loan of $10,000. After some discussion among themselves, the officers of the bank acceded to their request, and they executed their note for the amount to the bank, with a Mr. Hart as security. They then again offered to give the bank a chattel mortgage of the property whenever it might want such security. Prior to the time when the chattel mortgage was finally given, all of the notes were several times renewed, and at each renewal the makers repeated their offer of a chattel mortgage, to be executed whenever it might be wanted. On the 4th day of December, 1891, about a year after the last sum was borrowed and the machinery and improvements placed upon the ground, the chattel mortgage which had been offered was given at the request of the bank, and two or three weeks afterwards the mortgagee took possession of the property and sold it. It was admitted that from the time the firm commenced business, down to the time of the execution of the chattel mortgage, it deposited in this bank, in addition to the amounts borrowed, the sum of $68,000, the proceeds of its business, and drew its checks from time to time against the entire fund for the general purposes of its business. Mr. Lawrence, an officer of the bank, testified that, about a week before the sale took place, he had a conversation with Archie C. Fisk on the subject of the proposed sale. Mr. Fisk was the trustee named in the trust deed. Mr. Lawrence said he was told by Mr. Schrader that the bank had been notified by Mr. Fisk that he objected to selling the property; that he (witness) immediately looked Mr. Fisk up, and explained to him the circumstances under which the money was loaned and the chattel mortgage taken; and that Mr. Fisk said he had not understood the matter, and remarked: "Mr. Lawrence, if that is the fact, I don't think I ought to disturb you. If the way you stated to me, which I have no reason to doubt, I don't think I ought to disturb you. Go ahead, Mr. Lawrence; I don't think I will give you any trouble." The witness further said that when he repeated the conversation to the bank it proceeded with the sale. Mr. Fisk, testifying with regard to the same conversation, said that what he told Mr. Lawrence was that he (Fisk) had signed the notice as trustee; that he did not own the note; that under his (Lawrence's) statement of facts there might be something in the claim, but he could not say until he should confer with his attorneys, and, when he did, if their views coincided with Lawrence's, he would notify the bank that he had no further objection. There was evidence from which, if the case made by the plaintiff entitled her to a recovery, the injury to her security might be estimated. The judgment was against her, and she brings error.

We have held that an action may be maintained by a mortgagee, or the beneficiary in a deed of trust, for an injury done to the security. Vaughn v. Grigsby, 8 Colo.App. 373, 46 P. 624. This suit was therefore properly brought.

Whether as between the immediate parties to the trust deed, the articles of property in controversy were so annexed to the real estate as to become part of it, depends upon the character of the articles, the manner of their annexation, the uses to which they were to be applied, and the intention with which they were annexed. It appears from the...

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7 cases
  • Young v. Chandler
    • United States
    • Maine Supreme Court
    • December 15, 1906
    ...73 Me. 297; Meagher v. Hayes, 152 Mass. 228, 25 N. E. 105, 23 Am. St. Rep. 819; Thompson v. Vinton, 121 Mass. 139; Fisk v. People's Nat. Bank, 14 Colo. App. 21, 59 Pac. 63; Watertown Steam Engine Co. v. Davis, 5 Houst. [Del.] 192; Fuller-Warren Co. v. Harter, 110 Wis. 80, 85 N. W. 698, 53 L......
  • Roseburg Nat. Bank v. Camp
    • United States
    • Oregon Supreme Court
    • June 4, 1918
    ... ... realty are accomplished." ... Or as ... said in Fisk v. Bank, 14 Colo. App. 21, 27, 59 P ... 63, 65: ... "That chattels may be permanently an accession to the ... land, a purpose that ... ...
  • Murray Co. v. Jacksboro Oil & Milling Co.
    • United States
    • Texas Court of Appeals
    • March 30, 1918
    ...this holding is in harmony with the Texas decisions or in line with the trend of authority. In the Colorado case of Fisk v. People's Nat. Bank, 14 Colo. App. 21, 59 Pac. 63, the holder of a trust deed lien was held to be entitled to maintain an action against the holder of a chattel mortgag......
  • Beatrice Creamery Co. v. Sylvester
    • United States
    • Colorado Supreme Court
    • March 3, 1919
    ... ... Company against Osborne W. Sylvester and the Wallace State ... Bank. A trial resulted in a judgment against the plaintiff, ... and it brings ... the rule announced in the foregoing autherities. In Fisk v ... Bank, 14 Colo.App. 21, 59 P. 63, the facts were not parallel ... ...
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