Johnston v. Philadelphia Mortgage & Trust Co.

• Decision Date: 16 April 1901
• Court: Alabama Supreme Court
• Parties: JOHNSTON v. PHILADELPHIA MORTGAGE & TRUST CO.

30 So. 15

129 Ala. 515

JOHNSTON v. PHILADELPHIA MORTGAGE & TRUST CO.

Supreme Court of Alabama

April 16, 1901

Appeal from city court of Birmingham; W. W. Wilkerson, Judge.

Action of detinue by Joseph F. Johnston, who sues as receiver of the Francis-Vandergriff Shoe Company, against the Philadelphia Mortgage & Trust Company, to recover "one hundred and seventy-six feet of shelving and drawers" in a storehouse in the city of Birmingham, known and designated as "No. 2022 on Second Avenue." Judgment for defendant, and plaintiff appeals.

The defendant pleaded the general issue, and set up by special plea the fact that the shelving and drawers sued for were fixtures in the store building, and had become the property of the defendant as the purchaser at the foreclosure sale of the mortgage conveying the said lot and storehouse. Upon the trial of the case the plaintiff introduced evidence tending to show that Charles H. Francis originally owned the lot in the city of Birmingham upon which there was erected a brick building, which was known and designated as "No. 2022 on Second Avenue"; that the said Francis, soon after the erection of said building, caused to be placed in said storehouse the shelving and drawers which are described in the plaintiff's complaint and sued for in this action that Charles H. Francis was a shoe merchant in Birmingham Ala., and had the shelving sued for put into the building owned and used by him for his own use; that said shelving was massive and heavy, being 88 feet long on each side of store on a base 32 inches wide, 9 feet high, with a heavy cornice at top; that on or about the _____ day of March, 1888, the said Charles H. Francis, for a consideration of $2,000, sold and conveyed the said shelving and drawers to a co-partnership called Chas. H. Francis & Co., of which he was a member, and, along with said shelving, his stock of shoes that afterwards, on or about the 30th day of January, 1889, a corporation was formed, of which Charles H. Francis was the president, called the Francis Shoe Company, and the co-partnership of Chas. H. Francis & Co., for a consideration of $1,500, sold and conveyed the said shelving and drawers to the said Francis Shoe Company as such body corporate, and along with the said shelving and drawers the said Chas. H Francis & Co. also sold its stock of shoes; and that when the sale was made of the shelving and the shoes by Charles H. Francis to Chas. H. Francis & Co., the said co-partnership, took possession not only of the shoes, but also of the shelving and drawers, and carried on a shoe business in said house, but that the shelving sued for was not then actually detached from the building, or removed therefrom, and that also, when the co-partnership of Chas. H. Francis & Co. sold its said shoes and shelving and drawers to the said Francis Shoe Company, the possession of the shoes and of the shelving was delivered to the Francis Shoe Company, which carried on the retail shoe business in said building, and remained in possession of the shelving until about the 5th day of March, 1889, when the name of said corporation was changed to the Francis-Vandergriff Shoe Company, and new stockholders were admitted into the corporation, which was thereafter called the Francis-Vandergriff Shoe Company, but that the shelving sued for was not at that time actually detached from the building, or removed therefrom, and that the actual possession of the stock of shoes and of the said shelving was taken by the Francis-Vandergriff Shoe Company, which remained in the possession thereof, using the same, until about the _____ day of March, 1890, and occupied the building under a lease contract, when the Francis-Vandergriff Shoe Company sold out its stock of shoes to Roden & McWilliams, a co-partnership composed of B. F. Roden and J. H. McWilliams, who carried on the retail shoe business in said house, occupying the said house until about the 1st day of October, 1890, under the lease which had been made by Charles H. Francis, owner of the house, to the Francis Shoe Company. The defendant introduced in evidence a mortgage executed by Charles H. Francis to the Philadelphia Mortgage & Trust Company, dated June 3, 1889, to secure a loan of $1,200, which mortgage conveyed the lot upon which said building was erected. The defendant then introduced evidence showing that there was default by Charles H. Francis in payment of the mortgage debt; that said mortgage had been foreclosed under the power contained therein, and that at said foreclosure sale the Philadelphia Mortgage & Trust Company became the purchaser of said lot and storehouse, and as said purchaser took possession of said storehouse and shelving. That the foreclosure sale was made on November 19, 1894, and that from the time of the purchase the defendant leased said storehouse, and no demand was ever made upon the defendant for the...