1. The right of a tenant to recover trade fixtures must ordinarily be exercised while in possession under his lease; and if he fails to do so it will be lost, unless, by some agreement with the landlord, the right of removal is preserved.
2. Where a tenant gives a chattel mortgage upon a building erected by him upon leased premises, the mortgagee cannot remove the building after the tenant's right of removal expired.
Appeal from district court, Douglas county; Hopewell, Judge.
Action by M. E. Free against Stuart & Schemensky and George W. Sautter and another to foreclose a chattel mortgage. There was judgment for plaintiff, and defendants Sautter and another appeal. Reversed.Chas. Offutt, for appellants.
Cavanagh, Thomas & McGilton, for appellee.
NORVAL, C. J.
This action was brought in the court below by appellee, M. E. Free, to foreclose a chattel mortgage given by the defendants Stuart & Schemensky on two greenhouses erected by them on leased real estate owned by appellants, George W. Sautter and Frank Sautter. The cause was tried by the district court upon a written agreed statement of facts, signed by the attorney of the respective parties, of which the following is a copy: “(1) In the spring of 1888 the said Geo. W. and Frank Sautter were the owners in fee of a certain dwelling house, without outbuildings and about ten acres of land surrounding, in the outskirts of the city of Omaha, and within the limits of said city. That at said time said Sautter brothers rented the house and outbuildings only from April 1, 1888, to March 1, 1889, to the defendant C. Schemensky, for $100.00. The rent for this term was paid. (2) At the end of this term said Geo. W. and Frank Sautter rented the house, barn, orchard, vineyard, and all the land for one year for $200.00, the lease expiring March 1, 1890, and of this rent the tenant, Schemensky, paid $93.00, leaving a balance still unpaid of $107.00. (3) At the end of this term, on March 3, 1890, said Geo. W. and Frank Sautter rented the same premises for another year to said Schemensky for $225.00, the lease expiring March 1, 1891. Of this rent there was paid $13.40. (4) At the end of the last term the tenant, Schemensky, held over until May 12, 1891, at which time the tenant quit the possession and occupation of the premises, leaving a total of rent unpaid amounting to the sum of $341.60, no part of which has yet been paid. (5) That in the spring of 1890 said Schemensky requested permission of said Geo. W. and Frank Sautter, owners of said premises, to erect thereon two buildings and a boiler house, and that the same were erected during the spring and early summer of 1890. They were erected by building the same out of planks and posts, with the use of glass and sash, as is usually the case in greenhouses, the said boards or planks being fastened to a number of upright posts that were inserted and fastened into the ground for a distance of about two feet below the surface. The framework was built around said posts. (6) That there was also constructed in said greenhouses a boiler for the purpose of heating the same, by building a brick foundation down into the ground, and building said brick up over and around said boiler, leaving it stationary, and pipes were attached to and ran from said boiler through the various portions of the house so constructed, and fastened to the said greenhouse,in order thereby to conduct the heated water, and for the purpose of keeping the temperature in a condition required for greenhouses. The two buildings used as greenhouses were each 75 feet long and 10 feet wide, and were covered with glass and sash. They were constructed by nailing strips running from post to post, and onto those strips the planks for the sides and ends were nailed securely; and said houses and boiler are still remaining on said premises as when originally constructed. (7) On January 14, 1891, said Schemensky and one Stuart, who were partners as Stuart & Schemensky, executed to the plaintiff a chattel mortgage, a true copy of which is attached and made a part of plaintiff's petition herein, and the same was filed in the office of the county clerk of Douglas county, Nebraska, on said 14th day of January, 1891, at the hour of 3:45 P. M., and duly indexed in said office, as required by law in case of chattel mortgages, said chattel mortgage being to secure the amount of money stated therein; and the amount now due thereon and unpaid by said mortgagors to the plaintiff is $182.40. (8) Said property was leased for the purpose of using the residence as a dwelling house, and the land for the purpose of gardening, raising flowers and shrubs, it having been used for this purpose for several years last past. At the time said houses were constructed, there was nothing said by the tenant about removing said greenhouses, boiler, and boiler house at the expiration of the lease or at any other time. (9) The plaintiff claims a lien on said houses and boiler by virtue of the foregoing chattel mortgage, and the defendants George W. and Frank Sautter claim them as...
