Frederick v. Smith

• Decision Date: 18 April 1927
• Docket Number: 26402
• Citation: 147 Miss. 437,111 So. 847
• Court: Mississippi Supreme Court
• Parties: FREDERICK v. SMITH et ux. [*]

111 So. 847

147 Miss. 437

FREDERICK v. SMITH et ux. ^[*]

No. 26402

Supreme Court of Mississippi

April 18, 1927

Division A

1 FIXTURES. Lighting plant, bath tut, and kitchen sink installed) by tenant afterwards purchasing property held "fixtures."

As between mortgagor and purchaser from mortgagee purchasing at foreclosure sale, Delco lighting plant, bath tub, and kitchen sink, installed by tenant afterwards purchasing premises held to constitute "fixtures" and to belong to freehold, notwithstanding that it would be possible to use dwelling house without bath tub or sink and to have operated farm without lighting plant.

2 FIXTURES. Water tank, pump, and engine placed on leased premises by tenant after destruction by windstorm did not 'become fixtures (Hemingway's Code, section 2332).

Water tank, pump, and engine which were placed on farm by tenant after being totally destroyed or rendered useless by windstorm, and which were placed on leased premises by tenant for his own use and convenience, held not to have become fixtures in view of Code 1906, section 2834 (Hemingway's Code, section 2332), releasing lessee in absence of covenant from any obligation to restore or pay for property destroyed without negligence or fault on his part.

3. FIXTURES. Pipe from dwelling to commissary placed on, premises by lessee held "addition" to leased premises which tenant might' remove.

Galvanized pipe leading from dwelling house to commissary, and placed on premises by tenant for his own use and convenience, held to constitute an "addition" to leased premises which tenant had a right to remove.

HON. W. A. ALCORN, Jr., Judge.

APPEAL from circuit court of Bolivar county, HON. W. A. ALCORN, JR., Judge.

Suit in replevin by W. C. Frederick against C. M. Smith and wife. Judgment for defendants, and plaintiff appeals. Reversed and judgment rendered.

Judgment reversed.

Shands, Elmore & Causey, for appellant.

We are of the opinion that the proof establishes that the articles in question were fixtures and that the court misinterpreted the law in holding that they were not.

(a) Consider first the Delco light plant, which also includes the gasoline engine used to operate the plant, and the dynamo. This plant was used to furnish lights and electricity for the dwelling. It was a necessary part of the farm. It was on the premises when the appellee purchased the property from C. R. Smith in December, 1918, and it was still on the premises in April, 1920, when the deed of trust was given to the insurance company. This property remained on the premises in 1924 when the foreclosure took place and was on the premises when the appellant purchased the property in November, 1925. Richardson v. Borden, 42 Miss. 71; Tate v. Blackburne, 48 Miss. 1.

Whatever chattels may have been placed upon the property by the appellee as tenant could have been removed by him at the end of his term because of the liberal rule in favor of tenants; but as soon as he became a purchaser of the freehold, then his status relative to those chattels changed and the status of the chattels changed and they are deemed to be fixtures if in any way attached to the freehold and necessary to the enjoyment of it. Perkins V. Swank, 43 Miss. 349. This rule is also recognized by the supreme court of Georgia in Bringham v. Overstreet, 57 S.E. 484.

To determine whether or not a chattel has lost its character as a chattel and become a fixture, the intention of the party making the annexation is a very important matter of inquiry. Whether there was an intention to make the chattel a fixture is a question of fact, or at least a mixed question of law and fact, for a jury. Winnike v. Heyman, 169 N.W. 631; Harrisburg, etc., v. Goodman, 19 A. 844; Seeger v. Pettit, 18 Am. Rep. 452; Benedict v. Marsh, 18 A. 26. The trial court has left this question for the jury.

(b) We will discuss briefly the status of the bath tub: The law which we have already cited and discussed relative to the light plant applies to the bath tub, and without any extended discussion we further say that the law relative to the tub applies to the kitchen sink. This article was attached to the freehold, was necessary to the full enjoyment of the freehold, and was placed there in the early spring of 1920 at a time when the appellee was owner of the freehold.

(c) As to the water tank, engine and water pump: This property was placed on the premises after May, 1924, the month of the foreclosure. Appellee will no doubt contend that inasmuch as he placed this property on the premises while holding as tenant of the insurance company, he is entitled to the benefit of the rule; which is, that a tenant may remove property placed on the freehold during the term. But the court will recall that the water plant which was levied upon was a plant used to replace a similar plant which later plant was placed on the land in 1920. The appellee was then owner of the land and this plant placed there in 1920 was a plant used to replace still another plant which was placed there in former years. The plant levied on was the third water plant placed on the premises. Such facts being not disputed, the well-recognized rule stated in the authorities controls. 19 Cyc. 1066.

The rule as laid down in the above citation is that the tenant may remove additions to the leased premises which he has placed there to carry on his trade or to conduct his business on the premises, but the tenant is not permitted to remove property which he has placed on the premises in substitution of other like property. Ashby v. Ashby, 46 A. 531; Squire & Co. v. City, etc., 76 A. 679; Bovet v. Holzgraft, 23 S.W. 1014; Spalding v. Theatre Co., 175 S.W. 269; Webb v. Theatre Co., 87 A. 274.

There is a vast distinction between additions and substitutions. In the event additions are made to the premises, the tenant may remove them at the expiration of his term without consulting the landlord, but when substitutions are made, they take the place of former parts of the freehold and either the landlord or mortgagee whose rights will be effected must be consulted. As to such substitutions the presumption is that the "substituted articles shall be permanently attached."

In the case at bar no agreement was made with the mortgagee or with the appellant and as to these substitutions the appellee had no right to remove them. See Jones v. Millsaps, 71 Miss. 10, 14 So. 440; Edwards v. Road Co., 50 Am. Rep. 659.

(d) The one hundred fifty feet of pipe was placed in the ground between three and six inches in the fall of 1924. This would seem that the pipe was put under the soil after the foreclosure and while appellee was a tenant. Necessarily, the appellee had to tear up the ground. This would indicate that the pipe had become a fixture because it was as permanently annexed to the ground as its character would permit. As to the appellee's right to remove, the jury should have been permitted to settle the matter.

Clark, Roberts & Hallam, for appellee.

Beyond any question, at the time that all of the property seized under the writ of replevin with the exception of the Delco light plant, the bath tub and the kitchen sink, was placed on this property, C. M. Smith was a tenant on the property and none of the property placed by him while a tenant thereon; to-wit, the water tank, the piping, the gas engine for water pumping and the water pump itself were of such a character or nature or were so attached to the soil under the decisions of this court as to make them fixtures so as to cause the tenant to lose his title thereto.

As to the Delco lighting plant, the bath tub and the kitchen sink, we refer the court to the testimony herein as to the method of attachment of all of the various items and submit that none of these pieces of personal property was so attached to the soil or was so used or were in their nature fixtures.

In our opinion, the action of the trial court in granting the peremptory instruction was eminently correct under the decisions in this state. Weathersby v. Sleeper, 42 Miss. 732; Boone v. Mendenhall Lbr. Co., 52 So. 584; Am. Laundry Machinery Co. v. Citizens Nat'l Life Ins. Co., 65 So. 133.

Under the decisions of this state and under the facts in this case, all of the property seized by the writ of replevin is unquestionably shown to have been personal property and none of it to have been fixtures on the land.

OPINION

COOK, J.

The appellant, W. C. Frederick, instituted this suit in replevin against the appellees, seeking to recover possession of certain pieces of property which he alleged were fixtures and had been wrongfully removed from a farm which the appellees had previously been in possession of and which was purchased by the appellant. At the conclusion of the testimony in the court below, the court peremptorily instructed the jury to find for the appellees, and from the judgment entered in pursuance thereof, this appeal was prosecuted.

The proof shows that during the year 1916, and until he purchased the property on December 30, 1918, the appellee C. M. Smith was a tenant on this farm, which consisted of four hundred seventy-eight acres. On April 20, 1920, the appellees C. M Smith and his wife, Emma Smith, executed a deed of trust in favor of the Jefferson Standard Life Insurance Company in which this land was conveyed to secure the payment of a certain indebtedness to the beneficiary. On May 19, 1924, this deed of trust was foreclosed, and the property was purchased by the said ...