Hunt v. Mullanphy

• Decision Date: 30 April 1825
• Citation: 1 Mo. 508
• Parties: HUNT v. MULLANPHY.
• Court: Missouri Supreme Court

1 Mo. 508

HUNT

v.MULLANPHY.

Supreme Court of Missouri.

April Term, 1825.

PETTIBONE, J.

This was an action of trover, brought by Mullanphy, against Hunt, in the court below, for a stone slab and copper boiler. There was a special verdict found, on which a judgment was rendered in favor of the plaintiff, for the boiler, and for the defendant, as to the slab. To reverse the judgment in favor of the plaintiff, the defendant brings his writ of error. It is only necessary, therefore, to examine the case as it respects the boiler, and the only point to be considered, is, whether it was a fixture; the facts set out in the special verdict, are, in substance, as follows: That sometime before the commencement of the suit in the court below, one Theodore Hunt was seized and possessed of a certain lot of ground in the town of St Louis. whereon was a tan-yard and a curry-shop; and whereon were also sundry articles of personal property, called the stock of the said yard and shop; that before the commencement of the said suit, Theodore Hunt mortgaged the said lot to the plaintiff in the suit below; that after the mortgage, and before the commencement of the said suit, Theodore Hunt sold and delivered all the stock of the said yard and shop to the defendant; and also, that after the said sale, and before the commencement of the suit, the sheriff of St. Louis county, under an execution against the said Theodore Hunt, sold, and by deed conveyed the said lot to the said plaintiff in the suit below. The special verdict also finds, that in a house, standing on the said mortgaged premises, in the space between the chimney and the side-wall of the said house, there stood the boiler in question, made of copper, built into a furnace erected for that purpose, with brick and mortar, so as to hide the said boiler, except the edge or mouth of the same; that from the furnace, underneath the said boiler, proceeded a flue, conducted along the side of the chimney, and closed at the top; and that in the side of the chimney, and covered by the flue, was a hole pierced through the side of the chimney, into the flue thereof, so as to permit the passage of the smoke; that the brick work of the said furnace, and the flue thereof, were not interlaced with the brick work of the said chimney, but was capable of being taken down, without injuring the chimney, any otherwise than by laying bare the hole of communication, between the flue of the furnace and the flue of the chimney. The said verdict also finds, that the defendant, while in possession of said premises, removed therefrom, and converted to his own use, the said boiler; that the said boiler was in the situation above described, at the time of the execution of the said mortgage, and continued in the same situation for some time after the execution of the said deed from the sheriff, above mentioned. There is nothing in the verdict, which shows with what intention, or for what purpose, the boiler was thus affixed in the said building.

The case, therefore, presents the naked question, whether property, personal in its character, thus affixed, becomes prima facie a part of the realty, so as to pass by a deed of the land. There can be no question, but that a copper kettle, or boiler, abstractly considered is of a personal character. It is, in its nature, moveable, and may be used in any place where the wants or convenience of the owner may require it, and the character of it is not changed by the manner in which the philosophy, economy, or convenience of the...