Jemison v. Aiken
| Decision Date | 01 January 1878 |
| Parties | MOODY & JEMISON v. D. A. AIKEN. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from Anderson. Tried below before the Hon. R. S. Walker.
September 4, 1876, Aiken, plaintiff below, brought suit against appellants and J. W. Ozment to recover an iron safe and burglar-proof combination-lock chest, together of the alleged value of $1,600, of which appellee claimed to be the owner on the 1st day of January, 1876, and which appellants refused to deliver to him on demand; which property was alleged to be of the value of $25 per month from the 1st day of January, 1876, and which plaintiff claimed as damages for the wrongful detention of the safe and chest. The defendants, Moody & Jemison, answered (1) by a general denial, and (2) claimed the safe and chest as fixtures attached to a house of which they were the owners, together with the lot of ground on which it was situated. Judgment by default was taken against defendant Ozment, for want of an answer, January 11, 1877. The case was tried before the court without a jury. The testimony in the case was substantially as follows, J. W. Ozment being the only witness:
He testified that he owned the safe in controversy in 1875; that he was then doing a mercantile and banking business, near the depot, in Palestine, in the house on lot 5, block 163, known as Ozment's bank building. On the 6th of December, 1875, he made and delivered to appellants, Moody & Jemison, a deed, of which, it was agreed, the following is the substance: The consideration was $25,000; it conveyed several tracts of land; it was a warranty deed; that a part relating to the house in which the vault and safe was situated was as follows, as to description: “Lot No. 5 in block No. 163, known as Ozment's new brick store and bank building, near the said railroad depot, in Palestine, Anderson county, Texas; to have and to hold, together with all and singular the houses, improvements, tenements, hereditaments, and appurtenances to the same belonging or situated thereon”; which deed was duly recorded in the county clerk's office on the 10th day of December, 1875; that George A. Wright & Co., of which he was the “Co.,” carried on the mercantile business and he (witness) the banking business in said house until January 1, 1876. Witness used the safe all the while, paid no rent for it, and regarded it as his. It was in the house in a brick vault. The vault was made as follows: The walls of the house were brick; the floor was laid, except a place near the east wall about ten feet square; this place was laid with brick and mortar from about two feet below the earth's surface to a level with the floor. The safe was rolled in on this foundation and a brick wall about twelve inches thick was built on the south, west, and north sides, and the wall of the main building made the east side. It was built eight feet high, and covered with iron and cement. The only opening into the brick vault was an iron door. The safe could not be passed out of it, as it was about eight inches wider than the door. The safe did not touch either wall of the vault, nor was it fastened or attached to it; but it could not be moved out without making a hole in the wall of the vault, or taking brick from around the iron door frame until a space was made large enough to pass the safe out. It would have cost about ten dollars to have made the opening and repaired it. The safe was placed there by witness, who then owned the land, house, and safe, and intended to do business there the balance of his life, and never expected to move again. The safe weighed about eight thousand pounds. About the 2d of January, 1876, witness failed in business, sold the safe to appellee, and it was placed as a credit on indebtedness due from witness to him at fifteen hundred dollars. A few days afterwards, about the 6th of January, 1876, Mr. Jemison came to Palestine, and witness told him he had sold Aiken the safe. Jemison then, for the first time, claimed the safe, and so told witness, as having passed by the deed as a fixture. Witness told him he regarded the claim as unfair and unfounded; but to satisfy Jemison, and to the end that witness might perfect Aiken's title to said safe, if it was not good, and to get Moody & Jemison to release their claim to it, he agreed to make them a deed to three lots of land in Palestine, worth about one thousand dollars, and to about six hundred dollars' worth of furniture. Witness had already written a deed to Aiken to three lots, but had not delivered it. Witness tore up the deed, and made Moody & Jemison a deed to the lots and a bill of sale to the furniture, and considered the matter settled. Aiken made witness his agent to hold and sell the safe for him. When witness left the building after he failed, he left the safe there, and Moody & Jemison afterward came into possession of the building, in which the safe was still standing in the vault. Witness had an opportunity to sell it once and wrote to Aiken. He told him to sell it at the price offered or rent it. Witness went to Mr. Ash, Moody & Jemison's agent, and demanded possession of it; and he refused to deliver it, saying that Moody & Jemison claimed it as their property, and that he held it for them.
The safe had not been moved from the time it was put there up to the date of demand, and Moody & Jemison made no deed of release to witness to it, when witness deeded to them the lots and furniture. It was worth about eleven hundred dollars then and now. It could be moved about in the brick vault. The chest or iron vault was inside of the main safe, and weighed about three thousand pounds, and originally cost about one thousand dollars; but that and the safe were and are now worth about eleven hundred dollars. Witness still has the combination to the lock, and has never given it to any one. The building has not been occupied as a bank since January, 1876, when witness failed. The brick vault was taken down a few months ago by H. Ash, who bought the house of Moody & Jemison, and the safe is now standing against the wall. The bill of sale witness gave D. A. Aiken to the safe was dated January 2, 1876, and was in the usual form, reciting a consideration of fifteen hundred dollars, and saying, “I hereby convey and deliver said safe,” describing it and the chest inside of it.
Judgment was rendered for plaintiff, and Moody & Jemison appealed.
Greenwood & Gooch, for appellants.
I. That the iron safe and vault in controversy were fixtures, and by deed of conveyance from J. W. Ozment, conveying to appellants the lot and house to which and in which the same were securely and permanently fixed, passed the title to said property from J. W. Ozment to appellants on the 6th day of December, 1875, see 2 Smith's Lead. Cas., 249, 253, 254, 255; Noble v. Bosworth, 19 Pick., 314; Brightley's Dig. of Sup. Ct. Rep., p. 427, title FIXTURES, s. 6; 1 Bouvier's Law Dic., title FIXTURES, item 7; 1 Wash. on Real Estate, sec. 25; Hutchins v. Masterson, 46 Tex., 551.
II. If said safe and chest were in fact personal property, and the appellee had acquired a title to the same, prior to the bringing of his suit, by written conveyance from J. W. Ozment, the appellants could not be held legally responsible to appellee for damages for failure to deliver said safe and chest, the appellee having failed in his petition to allege or to show in evidence that appellee ever tendered to appellants the money necessary to compensate appellants for the damage to their property incident to the removal of said safe and chest, or to tender the money necessary to pay laborers to effect the removal, or to offer the necessary force and laborers at his (appellee's) expense to effect the transfer of the possession of said property from appellants to appellee. (Hooban v. Bidwell, 16 Ohio, 509;Fletcher v. Howard, 2 Aik., 115.)
R. A. Reeves, for appellee.
I. The safe and vault in controversy were personal chattels, and not fixtures to the house and lot, so that they would pass to appellants as purchasers of the house and lot, on December 6, 1875, under their deed from Ozment.
II. The conveyance by Ozment to Moody & Jemison of other property estops them from claiming the safe in controversy.
This case involves the discussion of the subjects of fixtures to the extent of deciding that if the iron safe and chest in controversy is, under...
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