Homestead Land Co. v. Becker

• Decision Date: 30 April 1897
• Parties: HOMESTEAD LAND CO. v. BECKER ET AL.
• Court: Wisconsin Supreme Court

96 Wis. 206

71 N.W. 117

HOMESTEAD LAND CO.

v.BECKER ET AL.

Supreme Court of Wisconsin.

April 30, 1897.

Appeal from circuit court, Milwaukee county; Charles V. Bardeen, Judge.

Foreclosure by the Homestead Land Company against Washington Becker, as receiver, impleaded with the Milwaukee Tack & Nail Company and others. Judgment for plaintiff, and Becker appeals. Affirmed.

The plaintiff brought this action to foreclose a mortgage for $15,684.01, on certain lots in block 11, in the continuation of Layton Park, etc., in the county of Milwaukee, upon which lots was a tack and nail factory, equipped with an engine and boiler, and shafting, pulleys, and belting, tack and nail machines, bolted to the timbers of the building, and connected with said shafting by belts; the whole being used as a factory for the manufacture of tacks and nails. The defendant Becker, as receiver, had obtained a judgment for $14,611.36, rendered July 21, 1893, against the Milwaukee Tack & Nail Company, the mortgagor, upon which execution had been issued and levied upon said machinery, he claiming the same to be personal property, and the plaintiff claiming the same to be a part of the real estate, and covered by its mortgage. The plaintiff had loaned and advanced to the firm of Austin, Soule & Brazier, who were engaged in the manufacture of tacks and nails, large sums of money, which were used and expended in the construction and building of the tack and nail factory in question, on lots sold and afterwards conveyed by it to said company, and in the purchase of additional machines and machinery which were placed in the factory. It was found by the court: That said building was purposely constructed with strong foundations and heavy timbers, on which the floors thereof are placed, the upper floor being supported by strong posts, in order to make it sufficiently firm to carry the heavy machinery to be placed in the second story of said building. That said firm and their grantee, the Austin, Soule & Barnett Company, placed in said factory all the machines and machinery in controversy, and attached the same to the ground and building, with the purpose and intention that the same, as a whole, should constitute a plant and factory for the manufacture of tacks and nails, and that such plant and factory, including machines and machinery, should be permanent fixtures and accessions to the freehold, and that the business of the manufacture of tacks and nails should be permanently established and conducted on said property; and, to that end, the boiler and engine, designed to furnish power to propel and operate said machinery, were built upon brick foundations, reaching below the first floor of said building, and several feet into the ground. That the shafting used therein is adapted to said building, and was securely fastened to the upper floors, and to the sides thereof, by iron hangers bolted to the timbers, and supporting the second floor and timbers, constituting the sides and framework of said building. That all the machines were securely fastened to said building, by being firmly bolted to the floors thereof, and connected to the shafting by belts and pulleys, and were propelled by power furnished by said engine and boiler, through belts connected with said shafting; and that it was the purpose and intent of said firm, and their grantee, the Austin, Soule & Barnett Company, to make said machines and machinery, and the whole thereof, a permanent annexation to the freehold, to be used as aforesaid. Said Austin, Soule & Brazier, being indebted to the plaintiff for said moneys, and for the price of said lots, in the sum of $15,684.01, executed their promissory note for that sum, payable May 18, 1894, together with a mortgage upon the lots described, securing same, which was duly recorded May 22, 1889. That on the 14th of January, 1891, they organized a corporation under the laws of the state, called the “Austin, Soule & Barnett Company,” for the purpose of manufacturing tacks and nails in said factory, and conveyed said premises to said corporation, the real consideration for which was the assumption by said company of said indebtedness then due from the said firm to the plaintiff. Subsequently said mortgage was released, and, in place thereof, the said corporation, on the 14th of January, 1891, executed its promissory note for the mortgage debt to the plaintiff, together with a mortgage on said lots and premises constituting the factory, etc., which was recorded February 11, 1891, which is the mortgage being foreclosed, and, at the same time, executed and delivered to the plaintiff its certain chattel mortgage, securing the same debt, in which is described not only certain personal property, consisting of tools used by...