Hutchins v. Saint

• Decision Date: 01 January 1877
• Citation: 46 Tex. 551
• Court: Texas Supreme Court
• Parties: W. J. HUTCHINS v. MASTERSON & STREET, ASSIGNEES, &C.

46 Tex. 551

W. J. HUTCHINS

v.MASTERSON & STREET, ASSIGNEES, &C.

Supreme Court of Texas.

1877.

APPEAL from Brazoria. Tried below before the Hon. A. S. Lathrop, special judge.

January 8, 1872, D. G. Mills brought suit against W. J. Hutchins, for the recovery of a sugar-mill, alleged to be of the value of $3,000, or its value, damages, &c. Mills going into bankruptcy, his assignees, Masterson & Street, were made parties. Plaintiff claimed title to the mill, by purchase of one Brown, who bought from McNeel, who bought of Asa Watt Thompson, on the--day of September, 1867.

The defendant pleaded the general denial; and that the mill was a fixture on a plantation which had been conveyed by Mrs. Nancy Thompson to her sons, A. Watt Thompson and Wells Thompson, in which A. Watt Thompson had conveyed his interest, November 26, 1866, to Wells Thompson, and that Wells Thompson had sold the mill to defendant.

The testimony showed a parol sale, by A. Watt Thompson, while in possession of the land, to McNeel, in November, 1866; that in August, 1867, McNeel proposed selling it to Brown, and they, Brown and McNeel, in negotiating, went to A. Watt Thompson, who then executed a bill of sale, of date 30th September, 1867, for the mill, to McNeel, who, selling it to Brown, assigned to him the bill of sale; that May 15, 1869, Brown sold the mill to plaintiff, indorsing the bill of sale to him.

The defense showed the deed from Mrs. Nancy Thompson to Wells Thompson and A. W. Thompson; deed of A. W. Thompson, for his interest, to Wells Thompson, of date November 26, 1866, recorded July 15, 1867, and Wells Thompson's sale and delivery of the mill to the agent of defendant.

It also appeared in evidence, that A. W. Thompson, at his sale, agreed with McNeel, that the mill could remain on the plantation until it should be convenient to move it; that Wells Thompson refused to ratify the sale to McNeel; and that at his purchase, McNeel did not know that A. W. Thompson had sold his interest in the plantation to Wells Thompson, and that A. W. Thompson was not the general agent of Wells Thompson.

The further facts necessary are given in the opinion.

The jury returned a verdict for plaintiff, and Hutchins appealed.

Waul and Walker, for appellant, cited Fains v. Walker, 1 Bailey, 540; Powell v. Monson & Co., 3 Mason, 459; Bratton v. Crawsen, 2 Strobh, 478; DeGraffenreid v. Stubbs, 4 Humph., 451; Cook v. Whitney, 16 Ill., 480; Schouler on Per. Prop., 150; 2 Kent, 441; Walker v. Sherman, 20 Wend., 636; Bringhoff v. Munzenmaier, 20 Iowa, 513; Richardson v. Copeland, 6 Gray, 536; 1 Stark. Ev., 594, 655: 1 Greenl. Ev., secs. 275, 276; Rockmore v. Davenport, 14 Tex., 604.

William Fort Smith and Thos. G. Masterson, for appellees.

MOORE, ASSOCIATE JUSTICE.

In no view which we have been able to take of this case, can the judgment be sustained.

On the trial in the court below, the presiding judge instructed the jury upon the hypothesis that in selling the mill in controversy, Asa Watt Thompson may have acted as the agent of the owner; but as there is no evidence in the record tending to show that he pretended to act in a representative character in the transaction, or was understood by purchaser as doing so, nor anything whatever shown which can be regarded as justifying or warranting an inference that he had any such authority--while on the other hand, the contrary seems to be clearly established,--it is unnecessary for us to give any consideration to this view of the case.

The validity of the judgment, consequently, depends entirely upon the fact whether said Thompson had any title to or interest in the mill at the time of the alleged sale under which it is claimed by appellees; and if so, whether this sale was legal, and vested in the purchaser a valid title to the mill as against Wells Thompson, the subsequent vendee of said Asa Watt Thompson's undivided half of the land. Before we can properly determine these questions, it is necessary that we shall ascertain what, in contemplation of law, was the true nature and character of the property at the time of the sale, upon which appellees rely to maintain their action. Was it a chattel, or was it so fixed or annexed to the land as to have become, in contemplation of law, a part of it?

The word “fixture,” if a legal term, which Lord Campbell seems to doubt, it is universally conceded, is, as a substantive term, of modern origin. And, as has been...