Henkle v. Dillon

• Decision Date: 16 January 1888
• Citation: 15 Or. 610,17 P. 148
• Parties: HENKLE et al. v. DILLON et al.
• Court: Oregon Supreme Court

17 P. 148

15 Or. 610

HENKLE et al. v. DILLON et al.

Supreme Court of Oregon

January 16, 1888

Appeal from circuit court, Benton county.

Action by plaintiffs, Henkle & Davis, to foreclose a mortgage on real estate. Plaintiffs appeal from a decree refusing to order sale of an engine and saw-mill, placed on the land covered by the mortgage.

J.W Rayburn, for appellants.

John Kelsay, S.T. Jeffreys, and W.S. McFadden, for respondents.

STRAHAN J.

Plaintiffs commenced this suit to foreclose a mortgage on certain real property in Benton county, given by the defendants George W Dillon and Olive, his wife, to the plaintiffs, to secure the payment of a certain promissory note to them for the sum of $1,002.20, with interest after April 26, 1886. The mortgage was executed on the same day. The note was signed by Dillon Bros., a firm composed of G.W. Dillon, D.M. Dillon, and J.W Dillon, all of whom were made defendants in the suit. After the suit was commenced, and before final decree, the defendants Staver & Walker, appeared, and made such representations to the court as to their interest in some part of the litigation, that the court ordered them to be made parties defendant, and gave them leave to file an answer. They allege in their answer in substance that, on the 26th day of March, 1884, Dillon Bros. executed to the J.I. Case Threshing Machine Company a chattel mortgage, to secure the payment of various promissory notes therein described, amounting to $1,130 and interest, which chattel mortgage included the 12 horse-power traction self-steering engine in controversy in this suit, and that said chattel mortgage was duly filed with the county clerk of Benton county, Or., on the 28th day of March, 1884, and entered in the book of chattel mortgages, No. 1, page 168 all before said engine was in any manner attached to the land described in complaint. That said engine stood on wheels; and, at the time said chattel mortgage was made, it was agreed and understood that the same should continue to be personal property, and that said J.I. Case Threshing Machine Company, or its grantees or assigns, should hold and continue its lien upon said engine until fully paid, and that said engine is and always remained personal property. That said engine was attached to said premises in such a manner that it could be easily removed without any material injury to the premises or said engine. That $800 of said indebtedness still remains due and unpaid. For a separate defense, Staver & Walker allege that Dillon Bros. and Joseph Staver made their certain other chattel mortgage to secure the payment of $300 to Staver & Walker, which mortgage was dated December 20, 1884, and was duly filed with the county clerk on the 31st day of December, 1884, and entered in the book of chattel mortgages, and that said last-mentioned mortgage included one J.I. Case Threshing Machine Company's double saw-mill, No. 165, together with all saws, tools, belts, or appurtenances in anywise connected therewith, and that it was stipulated in said chattel mortgage that said mill was to be located on 40 acres of land being N.W. 1/4 of the S.E. 1/4 section 5, township 11 S., range 5 W. That plaintiffs had notice of an agreement that said saw-mill should remain personal property, and was subject to Staver & Walker's lien until they were fully paid, and that the same has always remained personal property. That said saw-mill and appurtenances were so attached to the premises mentioned in the complaint that they could be easily removed without any material injury to said saw-mill or appurtenances. And that said note and interest remain due and unpaid. Properly certified copies of said chattel mortgages are annexed to the answer. It is also alleged in the answer that Staver & Walker had, before the suit was commenced, succeeded to the interest of the J.I. Case Threshing Machine Company in the note and mortgage made to that company, by assignment. There were some affidavits annexed to said chattel mortgages, for the purpose of renewing same, but the view we have taken of the case renders their consideration unnecessary. The evidence was taken in writing, and accompanies the transcript. The court below rendered a decree foreclosing the plaintiff's mortgage on the real property described in the complaint, but refused to include in the decree an order for the sale of the engine and portable saw-mill described in the chattel mortgages, from which decree the plaintiffs have appealed to this court. An examination of the positions relied upon by the appellants' counsel is therefore necessary.

1. The main position relied upon by him is that, before the date of the plaintiffs' mortgage, Dillon Bros. and Staver had so annexed the 12 horse-power traction self-steering engine and the portable saw-mill, in controversy, to the real estate described in the mortgage, as to make the same a part of the land, and subject to the mortgage. From the evidence taken it appears that, at the time the engine and mill were placed upon the premises, the legal title to said land was in the state; but G.W. Dillon was in possession thereof under a contract of purchase, and that, before the plaintiff's mortgage was executed, he made full payment to the state for said land, and received a deed therefor. It further appears that Dillon Bros. occupied this land for the purposes of their milling business. The engine was held in place by three blocks that were sitting on the sills. The floor was laid right around them so that they couldn't move on the floor. Two of these blocks had grooves cut in the top so that they could fit the hind axle of the engine, and the front block was cut in a circle to fit the front end of the boiler, and the engine was sitting on those blocks. The boiler was let down on the blocks above mentioned, and a brick ash-pan was put underneath the fire-box of the boiler. The ash-pan was in no way fastened to the engine or boiler. The engine was connected to a J.I. Case portable, double circular saw-mill, by means of a 10-inch rubber belt, running from the fly-wheel of the engine to a pulley on the mandrel of the mill. The engine was in no way attached to the premises on which it stood. The saw-mill machinery was all connected to a square frame, known as the "buck-frame," which was about 7 feet long by 4 feet wide, which was made of timbers 3 by 12 or 14 inches. The mandrels, pulleys, levers arbors, and belts were all connected to the square frame, except the carriage. This frame was set on the floor of the building, and four bolts came up from the floor at each corner of the frame, and went through a block which was laid across the corner of the frame, and screwed down in such a manner as to clamp the frame so it would not move around. The object of locating said engine and mill on said premises was to saw there until timber became scarce and unhandy, and then move to where it was more convenient to timber. This machinery is the same described in the chattel mortgages mentioned in the answer of Staver & Walker. It...