Goss v. Bisset

• Decision Date: 27 January 1967
• Court: United States State Supreme Court — District of Kentucky
• Parties: Chic GOSS, President & Process Agent of Chic Goss, Inc., et al., Appellants, v. Rose Burke BISSET, Appellee.

Page 50

411 S.W.2d 50

Chic GOSS, President & Process Agent of Chic Goss, Inc., et

al., Appellants, v. Rose Burke BISSET, Appellee.

Court of Appeals of Kentucky.

Jan. 27, 1967.

Raymond Francis Connell, Paris, for appellants.

John L. Keller, Harrodsburg, James F. Clay, Danville, for appellee.

PALMORE, Judge.

The questions involved in this case are whether certain items of property are 'fixtures' within the meaning of that term as used in a lease or leases and, if not, who is entitled to them.

The proceeding began as a claim and delivery action by the appellee, Rose Burke Bisset, against 'Chic Goss, President and Process Agent of Chic Goss, Incorporated,' in which Mrs. Bisset sought possession of several items of property allegedly owned by her and wrongfully detained by the defendant. It was not clear from the complaint whether she was endeavoring to sue Goss the individual, the corporation, or both. Anyway, Goss personally answered that the property described in the complaint and order of delivery belonged to the corporation 'All improvements and fixtures made to and located in said building or upon the lots shall become the property of the lessors exclusively * * *' etc.

and counterclaimed for the value of a window fan allegedly owned by him and wrongfully taken by Mrs. Bisset. In due course Chic Goss, Inc., was permitted to file an intervening complaint against Mrs. Bisset asserting ownership of all the property enumerated in her complaint, together with several additional items, alleging that Mrs. Bisset was wrongfully detaining all of it, and demanding damages. Mrs. Bisset denied the allegations of the counterclaim and, by answer to the corporation's intervening complaint, set forth the provisions of a written lease between herself as landlord and the corporation as tenant, one of which was as follows:

By virtue of this provision she alleged ownership of all the property claimed by the corporation.

After hearing the evidence without a jury the trial court made findings and conclusions to the effect (1) that neither Mrs. Bisset nor the corporation had proved ownership of any of the property except that which had passed to Mrs. Bisset by the terms of their lease (without specifying which of the items fell within this category), (2) that the window fan claimed by Goss belonged to Mrs. Bisset by virtue of the provision in the lease, and (3) that since neither party had established title to the remaining items they should remain in Mrs. Bisset's possession 'for a reasonable length of time' subject to claim by the true owner or owners.

Goss and the corporation appeal, no technical question being raised with respect to the appeal of Goss.

The term of the lease ran from April 1, 1959, to March 31, 1961. The leased premises consisted of a commercial garage building (Bisset Building) at the northeast corner of Eighth and High Streets in Paris, Kentucky, and an unimproved lot on the other side of the Lovell Building, which adjoins the Bisset Building and also was rented by the Chic Goss, Inc., from another party or parties. During the term of the Bisset lease and thereafter until April or May of 1961 Chic Goss, Inc., occupied and used all three properties for the conduct of an automobile dealership and repair service. When it vacated the Bisset premises it continued in possession of the adjacent Lovell Building, and some of the items of property here in controversy, including an air compressor, were located in the Lovell Building at that time.

As best we are able to reconstruct the facts from the evidence, Mrs. Bisset had leased her property to a previous tenant, Briggs Motor Company, for an 8-year term beginning April 1, 1951. That lease contained the same provision for fixtures as did the subsequent lease to Chic Goss, Inc. Briggs evidently assigned the lease to another company, Delaney, Inc., in 1955 or 1956. Goss was or became a one-third owner of Delaney, Inc., and in 1958 bought out the other owners, became the principal stockholder, changed the name of the corporation to Chic Goss, Inc., and continued as tenant under the original lease from Mrs. Bisset to Briggs. In any event, Chic Goss, Inc., had succeeded to the position of its predecessor lessees at the time the new lease was made in 1959.

Except for the above mentioned air compressor and the window fan claimed by Goss individually, the property in dispute had been placed in the Bisset Building or on the Bisset lot by the predecessor tenants, and some of it had been thereafter removed by Goss to the Lovell Building. That Chic Goss, Inc., had actual physical possession of all of it prior to its appropriation by Mrs. Bisset is not disputed; the trial court did not make any finding to the contrary. Hence our review is not directed to any factual determinations made by the trial court, but to the correctness of legal conclusions drawn from established facts.

'The facts constituting possession generate rights as truly as do the facts which constitute ownership, although the rights of a mere possessor are less extensive than those of an owner.' Holmes, The Common Law, p. 239. 'Even a wrongful possessor of a chattel may have full damages for its conversion by a stranger to the title, or a return of the specific thing.' Id., pp. 241--242. 'The owner is allowed to exclude all, and is accountable to no one. The possessor is allowed to exclude all but one, and is accountable to no one but him.' Id., p. 246. As it has been observed before, possession is title except against the true owner. Cf. Marinaro v. Deskins, Ky., 344 S.W.2d 817, 819 (1961).

Several of the disputed items fall within the classification of 'trade fixtures,' which would remain the property of the tenant unless the contract provides otherwise. See Bank of Shelbyville v. Hartford, 268 Ky. 135, 104 S.W.2d 217 (1937). There seems to be a diversity of opinion on the question of whether a stipulation that fixtures shall remain on the premises includes trade fixtures, but we are persuaded to the view that it does, upon the theory that otherwise such a provision would be superfluous and meaningless. Hence it is our opinion that those items that can be fairly identified as having become trade fixtures while on the premises of Mrs. Bisset belong to her, but that she had no right to interfere with Chic Goss, Inc.'s possession of other chattels, whether on or off her property, and has no right to retain anything now in her possession by virtue of such interference.

Mrs. Bisset contends that whatever chattels were on the premises when Chic Goss, Inc., or its predecessor Delaney, Inc., assumed possession as lessee remained in constructive possession of the lessor, either because she as owner of the premises had prior possession and the successor tenant became, permissively, her bailee or because the chattels had the status of 'mislaid' property to which, as owner of the premises on which they were found, she had a right of possession superior to that of the finder. Cf. 1 Am.Jur.2d 21, 25 (Abandoned, Lost, etc., Property, §§ 23, 30). The answer to the first of these theories is that Mrs. Bisset never had any possession, actual or constructive, of property not covered by the lease, and certainly the scope of that instrument did not embrace personal property other than fixtures. Possession passed directly and immediately from one tenant to the other, and none of them held any mere chattels by agreement with or permission of Mrs. Bisset; nor is there anything in the record to suggest that any of them intended or claimed to hold them in her behalf. There simply is no foundation on which constructive possession can be erected. The answer to the second theory is that obviously all of the property in question was left on the premises intentionally, and none of it mislaid.

'Mislaid property is property which the owner voluntarily and intentionally laid down in a place where he can again resort to it, and then forgets where he put it.' 1 Am.Jur.2d 4 (Abandoned, Lost, etc., Property, § 2). Unless there is evidence to the contrary, we think it must be presumed that when the owner of a garage business has turned his lease over to another tenant whose purpose is to engage in the same type of business, and has left major items of equipment without returning for them within a reasonable time thereafter, his intention was either to abandon the property or pass title to the successor. Conceding the trial court's right, within its fact-finding prerogative, to disbelieve Goss' testimony that he or his corporation had purchased the disputed property, the only credible conclusion in the alternative is that the prior owner nevertheless intended to abandon it.

'Abandoned property is that to which the owner has voluntarily relinquished all right, title, claim and possession with the intention of terminating his ownership, but without vesting it in any other person and with the intention of not reclaming future possession If the chattels were abandoned, Chic Goss, Inc., was the finder, and Mrs. Bisset's ownership of the premises on which they were found is immaterial. The case is clearly distinguishable from Silcott v. Louisville Trust Co., 205 Ky. 234, 265 S.W. 612, 43 A.L.R. 28 (1924), in which a bond was found on the floor of the safety vault department of a bank and the bank was held entitled to its custody as against the finder. Despite the general rule that the finder of lost property may keep possession against the owner of the premises on which it was discovered, the court was of the opinion that the bank's duty to its customers gave it a superior right. In this case there was no comparable duty, the premises were not under the lessor's control when possession passed from one tenant to the other,...