Holtgreve v. Sobolewski

• Decision Date: 13 October 1930
• Parties: Elizabeth Nace Holtgreve, Laura E. Campbell and William Rankin v. Helena Boehm Sobolewski and R. E. Sobolewski, Appellants
• Court: Missouri Supreme Court

31 S.W.2d 993

326 Mo. 412

Elizabeth Nace Holtgreve, Laura E. Campbell and William Rankin v. Helena Boehm Sobolewski and R. E. Sobolewski, Appellants

Supreme Court of Missouri

October 13, 1930

Appeal from Audrain Circuit Court; Hon. Emil Roehrig Judge.

Reversed and remanded (with directions).

Fry & Hollingsworth and Marion S. Francis for appellant.

(1) In determining whether or not certain property shall become a part of real estate and pass as such, the intent of the parties is an important and sometimes a controlling factor. Hunt v. Mullanphy, 1 Mo. 508; Kolb v. Baking Co., 9 S.W.2d 840; 31 C. J. 311; 11 R. C. L. 1068. (2) Where an improvement, such as a building is put upon the land of another, by his permission, under an agreement or understanding that it shall belong to the occupant or may be removed at any time, it does not become a part of the real estate, but continues to be personalty, and the property of the person making it. If the improvement is made by the owner's permission, an agreement that it shall remain the property of the person making it is implied in the absence of any other facts or circumstances showing a different intention. Wolf v. Hermann Savings Bank, 168 Mo.App 549; Bank v. Stanton, 55 Minn. 211; Fisher v Johnson, 76 N.W. 659; 31 C. J. 310-311; 11 R. C. L. 1066. (3) An agreement that an article or structure attached to the realty shall be removable or shall remain personalty, whether expressed, or merely implied from the facts and circumstances, is given full effect as against a mortgage of the realty made previous to annexation, in so far as this will not interfere with the security of such mortgage, the mortgagee not having been misled and having advanced nothing on the faith of such annexation. Wolf v. Savings Bank, 168 Mo.App. 549; 28 C. J. 684; 41 A. L. R. 616; Bank v. Stanton, 55 Minn. 211.

B. F. Jones, E. C. Kennen and Kenneth G. Kennen for respondent.

(1) The general rule is that whatever is annexed to the freehold becomes a part of it. And the intention of the party making the annexation that the property, although annexed to the soil, shall retain its character as personalty will not prevail against innocent purchasers of the realty without notice. Nor will such intention prevail against any vendee of the realty where the property annexed to the freehold is of such nature that it necessarily becomes incorporated into and a part of the realty by the act and manner of the annexation. Patton v. Brick Co., 167 Mo.App. 8; Kelley v. Austin, 46 Ill. 156; Clary v. Owen, 15 Gray 522; Hunt v. Iron Co., 97 Mass. 279; Bank v. Exeter Works, 127 Mass. 542; Annotation, 13 A. L. R. 473 (Par. 3). (2) The intention of a party who annexes property to realty that the property so annexed shall retain its original character as personalty must be manifested by the character of the annexation, the purpose for which it is made, and the character of the personalty so annexed. A mere undisclosed intention cannot modify the legal effect to the act of annexation. Patton v. Brick Co., 167 Mo.App. 8; 2 Words & Phrases (2d Ser.) 583. (3) When the trial court, sitting as a jury, finds for the plaintiff such is a finding against the defendant on all issues of fact in the cause. And such finding if supported by substantial evidence is binding on the appellate court. Rubber Tire Supply Co. v. American Utilities Co., 279 S.W. 751.

Henwood, C. Davis and Cooley, CC., concur.

OPINION

HENWOOD

Plaintiffs filed their petition in two counts alleging, in the first count, a cause of action in ejectment, and, in the second count, grounds for an order restraining defendants from interfering with the cultivation of the land described in their petition and from removing from said land the dwelling house located thereon. A temporary restraining order was issued. In their answer, defendants deny the allegations contained in both counts of the petition, and, as grounds for affirmative relief, allege that, in March, 1923, the defendant Helena Boehm Sobolewski, then Helena Boehm, a widow, owned the land described in plaintiffs' petition; that, on March 6, 1923, she executed and delivered to Robert P. Price, as trustee, a deed of trust on said land, to secure the payment of her promissory notes payable to the order of the O'Hara Farm Mortgage Company; that, in 1924, she and the defendant R. E. Sobolewski were married; that, shortly after their marriage, the defendant R. E. Sobolewski built the dwelling house on said land, and paid for the same out of his own funds, in pursuance of a contract between the defendants whereby it was agreed that said dwelling house should remain, at all times, the personal property of the defendant R. E. Sobolewski, and that he should have the right, at any time, to remove said dwelling house from said land, free from any claim to the title to said dwelling house on her part or on the part of any person or persons claiming under or through her; that, on February 5, 1927, plaintiffs, as the holders of said promissory notes, caused said land to be sold under the terms of said deed of trust, and became the purchasers of said land at said sale; that, prior to said sale, plaintiffs were given due notice of the rights of the defendant R. E. Sobolewski in said dwelling house, and, at the time of said sale, knew of his claim to the title thereto; and that, after said sale, plaintiffs, by claiming the title to said dwelling house, obtained the temporary order restraining defendants from removing said dwelling house from said land; and defendants pray that said temporary restraining order be dissolved; that the title to said dwelling house be adjudged to be in the defendant R. E. Sobolewski; and that he be given the right to remove said dwelling house from said land. Plaintiffs reply is a general denial.

After hearing the case on the merits, the trial court found for plaintiffs on both counts of their petition, and against defendants on the affirmative defense pleaded in their answer; that plaintiffs are entitled to the possession of the land described in their petition, and damages in the sum of one cent for the wrongful detention thereof, and twenty-five dollars per month as the reasonable rental value thereof; and, in accordance with said findings, adjudged that plaintiffs have and recover the possession of said land, and damages in the sum of one cent, and twenty-five dollars per month from the day of March, 1927, to the day possession of said land is given to them; and that a writ of possession issue; and that the temporary restraining order issued against defendants remain in force until the execution of the writ of possession. Defendants have, in due course, perfected an appeal to this court.

In their case in chief, plaintiffs put in evidence certain pages of the deed records of Audrain County, showing the trustee's deed under which the defendant Helena Boehm Sobolewski, then Helena Boehm, acquired the title to the land described in plaintiffs' petition, in 1913, and the deed of trust on said land which she executed and delivered to Robert P. Price, as trustee, in March, 1923, and the trustee's deed executed by Robert P. Price on February 5, 1927, under which plaintiffs acquired the title to said land.

J. R. Van Vacter, a neighbor of the Sobolewskis, testified: The fair monthly value of Mrs. Sobolewski's farm, including the dwelling house and other improvements, is three dollars per acre. About the first of February, 1927, shortly before the foreclosure sale, Mrs. Sobolewski wanted to buy an acre of his land, "just across the road from their house." She said "they were afraid they might lose the house when the land was sold."

Ralph Luton testified: He lived about three quarters of a mile from Mrs. Sobolewski's farm. After the foreclosure sale, the Sobolewskis wanted to buy an acre of his land. They said they wanted "to move the house on it."

K. G. Kennen, one of plaintiffs' attorneys, testified: After being retained by plaintiffs, and a day or two before the filing of this suit, he went to Mrs. Sobolewski's farm, and "demanded of her in the name of and for the plaintiffs immediate possession of the farm." She refused to give possession. On cross-examination, he said: "Mrs. Sobolewski has never intimated to me in any way that the house belonged to Mr. Sobolewski. She never in any way intimated that Mr. Sobolewski had any separate personal interest in the house." He further said that his only conversation with Mrs. Sobolewski concerning this matter occurred on the day he demanded possession of the farm; that he did not talk to Mr. Sobolewski on that day; and that he "made no demand on Mr. Sobolewski for delivery of possession of the house."

The evidence adduced by defendants is substantially as follows: In 1913, the defendant Helena Boehm Sobolewski, then Helena Boehm, a widow, acquired title to 140 acres of land in Audrain County, the same being the land described in plaintiffs' petition. In March, 1923, she executed and delivered to Robert P. Price, as trustee, a deed of trust on said land, to secure the payment of her promissory notes payable to the O'Hara Farm Mortgage Company. In August, 1924, she was married to the defendant R. E. Sobolewski. She was then living in the granary located on said land, there being no dwelling house thereon. At the time of their marriage, Mr. Sobolewski had about $ 2,000 in cash and owned a farm of 90 acres near Vandalia, in Audrain County. After she and Mr. Sobolewski had discussed the matter of building a dwelling house on said land for sometime, he made a written offer to her which reads as follows:

"Laddonia Mo., Oct. 27, 1924.

"Mrs. Helena L. Boehm now Sobolewski:

"I will build the House on ground or Farm or land this agreement, that the House...