Harkey v. Cain

• Decision Date: 15 November 1887
• Citation: 6 S.W. 637
• Parties: HARKEY <I>et al.</I> v. CAIN.
• Court: Texas Supreme Court

Page 637

6 S.W. 637

HARKEY et al. v. CAIN.

Supreme Court of Texas.

November 15, 1887.

Appeal from district court, Hunt county; J. A. B. PUTNAM, Judge.

Montrose, Grubbs & Hefner, for appellants. E. W. Terhune, for appellee.

GAINES, J.

This was an action of trespass to try title, brought by appellants against appellee, to recover a lot of land in the town of Lone Oak, in Hunt county, together with a certain house, mills, and machinery situated thereon. The court gave judgment for the plaintiffs for the lot, and for the defendant for the house, mills, and machinery, allowing defendant 90 days within which to remove the property adjudged to him from the land. The petition was in the ordinary statutory form. The special answer of defendant set up, in substance, that about May 1, 1879, he sold to plaintiff John M. Harkey (who is the husband of his co-plaintiff) the house, mill, and machinery, then situated in Rains county, for the sum of $2,000, for which the latter executed his two promissory notes, for $1,000 each, due respectively about December 25, 1879, and December 25, 1880, and bearing 10 per cent. interest from date; and that, by the terms of the contract, the vendor retained the title in the property until the purchase money should be fully paid. It was further averred that, with the consent of defendant, the plaintiff moved the property on the lot in controversy, and that defendant, being indebted to Leon & H. Blum, transferred the notes executed by plaintiff to them, in order to secure the indebtedness. The answer also alleged that, the notes not having been paid, on the eleventh day of November, 1881, plaintiff executed a new note to the Blums, for the sum of $2,600, due February 1, 1882, in renewal of the original notes, and that at the same time they executed a deed in trust upon the lot in controversy, and the mill and machinery thereon situate, to secure the same. It was further alleged that the latter note not having been paid, the lot and property upon it were sold by the trustee by virtue of the deed of trust, and bought in by Hyman Blum, to whom the trustee conveyed the same. It was also averred that defendant subsequently paid his indebtedness to Leon & H. Blum, and that, in consideration thereof, Hyman Blum conveyed the whole of the property to him. Copies of the deed of trust and of the trustee's deed to Hyman Blum were attached to and made a part of the answer. There is no bill of exceptions or statement of facts in the record. The assignments of error relied upon in the brief will be considered in the order in which they are presented.

The second assignment of error is that "the court erred in overruling the first and second special exceptions of plaintiffs to defendant's answer, for the deed of trust and deed set up therein, marked `Exhibits A and B,' does not identify or describe any land, so as to recover in this action." In the deed of trust and the trustee's deed the property is described as follows: "All that certain plot of land (being about 100×150 feet) situated in said town of Lone Oak, and certain building situated thereon, same being used as a flouring, corn mill, and cotton-gin, and all fixtures and tools pertaining thereto." We are of opinion that the description is sufficient. All that is required in a conveyance is that the property shall be described with such certainty that it can be definitely identified. If the words "all that certain plot of land (being 100× 150 feet) situated in said town of Lone Oak" stood alone, the exception might have been well taken; but the subsequent words in the description quoted point out the lot by reference to the improvements placed upon it at the date of the mortgage. The petition alleges the land described in the deed of trust "is the same land described in plaintiff's petition, and is the only mill-house or gin there was in Lone Oak at that time." If this be the fact, and it is admitted by the demurrer, the property could undoubtedly be identified, and the description is sufficient. Besides, the deed in trust recites that the note secured by it was given for the purchase money of "the said mill," the word "mill" being doubtless used in its enlarged sense, so as to include the house and machinery. Hence, the property described was capable of identification by showing what property then in Lone Oak constituted the original consideration of the debt, evidenced by the note secured by the deed of trust.

The third assignment is that "the court erred in overruling plaintiff's third special exceptions to defendant's answer, for defendant, in his answer, seeks to sever a part of the realty from the body thereof." This raises the question whether, according to the allegations of the petition, the mill-house, mill, gin, and machinery are to be deemed, as to Leon & H. Blum and those claiming under them, a part of the realty; and this we think the most important point in the case. Movable property which is attached to real property, and which is capable of being removed without being itself destroyed, and without detriment to the freehold, is generally called a fixture. Further than this the use of the term has never been satisfactorily settled. Some authorities confine it to such personalty as has been attached to the realty in such manner as to become a part of it, while, perhaps, an equal number apply the word to such only as remains personalty, although annexed to the freehold. See Abb. Law Dict. "Fixture." Using the word, however, in its more general sense, whether a fixture is to be deemed...