Hedges v. First Nat'l Bank of Pawnee
| Decision Date | 27 December 1934 |
| Docket Number | Case Number: 21813 |
| Citation | 170 Okla. 175,39 P.2d 57,1934 OK 759 |
| Parties | HEDGES v. FIRST NATIONAL BANK OF PAWNEE. |
| Court | Oklahoma Supreme Court |
¶0 1. Fixtures--Storage Tank Located on Filling Station on Leased Premises Held "Trade Fixture."
A storage tank located on an automobile filling station on leased premises held a "trade fixture."
2. Estoppel--Essentials of Estoppel by Silence.
In order for the silence of a party to constitute an estoppel against him, it must have occurred under such circumstances as to have made it his imperative duty to speak, and the party in whose favor the estoppel is invoked must have been misled into doing that which he would not have done but for such silence.
3. Fixtures--Right of Action of Mortgagee Against Owner of Leased Premises for Conversion of Trade Fixtures After Default by Mortgagee Who Was Lessee.
The owner and holder of a valid chattel mortgage upon a trade fixture may sue the owner of the leased premises for wrongful conversion of same, when the owner of the premises is in possession of the trade fixture after the lease expires, and exercises dominion and control over such property and in denial of the rights of the mortgagee and refuses to deliver possession of the mortgaged trade fixture to the mortgagee, upon the terms and conditions of the chattel mortgage being breached by the mortgagor and lessee of the premises at the time the mortgage was executed.
Appeal from District Court, Pawnee County; Charles C. Smith, Assigned Judge.
Action by the First National Bank of Pawnee against Pearl Hedges. Judgment for plaintiff, and defendant appeals. Affirmed.
Thurman S. Hurst, for plaintiff in error.
McCollum & McCollum, for defendant in error.
¶1 This is an appeal from the judgment of the district court of Pawnee county, wherein the First National Bank of Pawnee recovered judgment against Pearl Hedges in the sum of $ 125 for conversion of a storage tank. The parties will be referred to as they appeared in the trial court.
¶2 The plaintiff instituted this action seeking to recover a money judgment against defendant for conversion of the storage tank. The defendant in her answer contends that when the tank in question was placed on the real estate belonging to herself and husband by their lessees, it became a fixture and a part of the real estate, and could not be legally covered by a chattel mortgage or removed. The plaintiff in reply alleges that when said storage tank was placed on the premises of defendant and her husband by their lessees, said storage tank was a trade fixture and a chattel, subject to being mortgaged by lessees of defendant and her husband, and that when so mortgaged to plaintiff, said mortgage was legal and binding and subject to being foreclosed, and when foreclosed plaintiff became entitled to the possession thereof, or its value, provided possession could not be obtained.
¶3 The trial court placed the burden of proof upon the defendant, and after hearing evidence without a jury, held that the storage tank was not a fixture and submitted the question of its value to a jury, and the jury returned a verdict for plaintiff for $ 125.
¶4 The material facts in the case are not disputed. The defendant and her husband were the owners of a filling station in Pawnee, Okla., on January 9, 1928. Defendants leased said filling station to Longmire & Davis for a period of five years. Shortly thereafter, said lessees went in possession of said filling station under said lease, and on January 21, 1928, they bought the storage tank in question in Oklahoma City, Okla., which storage tank was shortly thereafter shipped to Pawnee and erected on the site of the filling station in Pawnee. The storage tank stands upon end, and is supported by timbers laid horizontally to build up a base four or five feet high. The timbers are bolted together and laid upon the ground, and were not laid in cement. Welded into this storage tank are two pipes, one leading to another tank on the premises, and another line that comes under the ground to the storage tank from the unloading docks of the railroad yards. Nailed to the pillars on which the storage tanks rest is a fence, some four or five feet high.
¶5 The lease was silent as to whether or not the storage tank could be placed on said premises, and the lessors had no knowledge of the storage tank being placed upon the site of the filling station. On June 6, 1928, the lessees borrowed $ 1,000 from the plaintiff, giving as security a chattel mortgage on the storage tank in question with other property, which said chattel mortgage was duly filed for record on June 7, 1928. The note was never paid, and on date suit was brought in this action, there was a balance due of $ 673.75. Lessees becoming in financial difficulties, turned back the filling station to defendant, who resumed possession thereon on March 6, 1929. Shortly thereafter, plaintiff learning of the change of possession of the filling station in question, demanded possession of the storage tank in question from lessees. Lessees refused to give possession, giving as their reason that of impending bankruptcy. On May 11, 1929, a petition by creditors was filed in federal court, asking that Longmire & Davis be adjudged involuntary bankrupts, and on June 27, 1929, they were adjudicated bankrupts. On July 3, 1929, lessees filed a bankrupt schedule in which the storage tank in question was listed as one of their assets, subject to the mortgage of plaintiff, and defendant was listed as a creditor of bankrupts. On July 2, 1929, the referee in bankruptcy made an order appointing one P. L. Long as receiver, and said receiver on July 15, 1929, filed an inventory in which the storage tank in question is listed, and said receiver advertised for sale said storage tank and other property covered by the bank's mortgage, subject to bank's mortgage, but received no bids. Defendant had notice of such proceedings as required by law, and on July 20, 1929, filed her claim as creditor of said bankrupts, while plaintiff, relying on defendant's said mortgage including the storage tank in question, filed no claim with the referee in bankruptcy. On June 18, 1929, lessees refused to give plaintiff possession of the storage tank covered by its mortgage, and plaintiff brought an action in replevin to recover possession of said storage tank and other chattels covered by their mortgage, and on July 27, 1929, the district court of Pawnee county, after said mortgaged chattels had been released to plaintiff by referee in bankruptcy in federal court, awarded plaintiff judgment for possession of said storage tank and other chattels covered by the mortgage. Defendant at...
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Moffat v. White, 31576.
...removal caused no damage to the premises, as there are no bolts or rods left protruding from the foundation. In Hedges v. First Nat. Bank of Pawnee, 170 Okl. 175, 39 P.2d 57, the court held such storage tank was a trade fixture and as such removable. The same is true in respect to the boile......
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Hall v. Woody
...87, 79 P. 903.) ¶7 All the following cases agree that the intent is the proper rule for determining fixtures: Hedges v. First Natl. Bank of Pawnee, 170 Okla. 175, 39 P.2d 57; Lawton Pressed Brick & Tile Co. v. Ross-Keller Triple Pressure Brick Machinery Co., 33 Okla. 59, 124 P. 43; Elerick ......
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Hall v. Woody
... ... "* ... * * First by determining whether the machinery has been ... actually ... determining fixtures: Hedges v. First Nat. Bank of ... Pawnee, 170 Okl. 175, 39 P.2d ... ...
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In re Gray
...done without material injury to the realty. In re Tri-State Fabricators, Inc., 32 B.R. 260 (Bkrtcy.W.D.Okl.1983); Hedges v. First National Bank, 170 Okl. 175, 39 P.2d 57 (1934). With this rather extensive background in mind we now proceed to examine the mobile home in We have no doubt that ......