King v. Blickfeldt

• Decision Date: 12 July 1920
• Docket Number: 15718.
• Citation: 111 Wash. 508,191 P. 748
• Court: Washington Supreme Court
• Parties: KING v. BLICKFELDT et al. Appeal of TITLE TRUST CO. et al.

191 P. 748

111 Wash. 508

KING v. BLICKFELDT et al. Appeal of TITLE TRUST CO. et al.

No. 15718.

Supreme Court of Washington, En Banc.

July 12, 1920

Appeal from Superior Court, King County; J. T. Renald, Judge.

Action by D. H. King against J. M. Blickfeldt and others to foreclose mechanics' and materialmen's liens. From a decree subordinating their liens and claims to the right of the Otis Elevator Company to remove an elevator installed in the building, the Title Trust Company, the Inlaid Floor Company, and the Seattle Marble & Tile Company appeal. Decree modified, and cause remanded with directions.

Roberts & Skeel and Jones, Riddell & Brackett, all of Seattle, for appellants.

Bogle Merritt & Bogle, of Seattle, for respondent.

PARKER J.

This action was commenced in the superior court for King county to foreclose a number of mechanics' and materialmen's liens held by the plaintiff, King. Our present inquiry has to do only with the mortgage lien claim of the defendant and cross-complainant Title Trust Company, and the mechanics' and materialmen's lien claims of the defendants and cross-complainants Inlaid Floor Company and Seattle Marble &amp Tile Company, as against the claim of title made by the defendant and cross-complainant Otis Elevator Company under a claimed conditional sale of the elevator installed by it in the building in question. A trial in the superior court upon the merits adjudicating the rights of all these parties as well as others resulted in a decree sustaining the claim of title made by the Otis Elevator Company to the elevator in question as superior to these mortgage and lien claims. From this disposition of the cause Title Trust Company, Inlaid Floor Company, and Seattle Marble & Tile Company have appealed to this court.

On September 20, 1917, Otis Elevator Company entered into a written contract with the Real Property Investment Company the owner of the real property in question, situated in the city of Seattle, by which it agreed to furnish, erect, and install in the building then in course of construction upon the property a passenger elevator. The contract, which was in the form of a proposal and acceptance, contained, among other stipulations, the following:

'We are to retain title to and possession of all machinery, implements, and apparatus furnished by us under terms of this proposal, until final payment shall have been made.'

This contract was never filed in the office of the county auditor as a conditional sale contract, nor did any of appellants have any actual knowledge of its existence until after each of their lien claims accrued. This work of erecting and installing the elevator in the building was commenced by the Elevator Company on December 15, 1917, which work continued until near March 19, 1918, when it had been completed and was approved by the supervising architect. The furnishing and installation of the elevator not being paid for as agreed upon, the Elevator Company claimed title to the elevator and the right to remove it from the building freed from the mortgage and lien claims of appellants.

On December 6, 1917, Real Property Investment Company conveyed by deed, absolute in form, the lots and the building thereon then in course of construction to Title Trust Company, which deed was duly recorded in the office of the auditor of King county on the following day. This deed was intended as a mortgage to secure a loan of $20,000 agreed to be made by Title Trust Company to Real Property Investment Company. This loan was consummated in part only, the Real Property Investment Company receiving from Title Trust Company only the following amounts thereon at the times mentioned: On December 13, 1917, $3,000; on December 30, 1917, $500; on January 2, 1918, $500; on January 17, 1918, $500; on February 2, 1918, $800; and on February 9, 1918, $3,000; in all, $8,300--which, together with the interest accruing thereon, was the amount for which the trial court awarded foreclosure in favor of Title Trust Company, but subject to the right of the Elevator Company to remove the elevator from the building freed from the claims of Title Trust Company under its mortgage. This period, it will be noticed, was substantially contemporaneous with the period of the erection and installation of the elevator.

On December 20, 1917, the Seattle Marble & Tile Company, in pursuance of a contract made in behalf of the owner of the property with them, commenced to furnish and put in place the marble in the vestibule of the building, which furnishing of material and work continued to and was completed on or about February 27, 1918. This period, it will be noticed, was substantially contemporaneous with the erection and installation of the elevator in the building. The superior court decreed foreclosure of the lien of the Seattle Marble & Tile Company for the unpaid balance due them, subject, however, to the right of the Elevator Company to remove the elevator as its absolute property.

On February 2, 1918, Inlaid Floor Company, in pursuance of a contract entered into by them with the owner of the building, commenced to furnish material for and lay floors in the building, which furnishing of material and work continued until March 26, 1918. This period, it will be noticed, was contemporaneous with about the latter half of the period of the erection and installation of the elevator in the building. Foreclosure of the lien of Inlaid Floor Company for the balance due them was awarded by the decree, subject, however, to the right of the Elevator Company to remove the elevator as its absolute property.

Our principal inquiry being as to whether or not the elevator upon its installation in the building became such a fixture as to become a part of the realty as between the Elevator Company and appellants, there being no agreement between them, nor any agreement between the owner and the Elevator Company of which they had notice, as to the elevator plant remaining the property of the Elevator Company, and therefore personal property until paid for, it becomes necessary for us to note the relation of the elevator to the general use of the building; what the elevator plant consisted of; and the manner of its physical attachment to the building and the ground upon which it rests. The building is an apartment house of five stories, all of which the elevator was designed to serve. There was built into the building as a part of its original construction a permanent shaft for the elevator. One could hardly say that the elevator plant was of a special or peculiar type, or that as to most of its parts, such as the car, cables, counterweights, etc., they were made specially for installation in this particular plant. Indeed, most of its parts, viewed separately, could well be classed as stock parts. However, in its installation there was constructed as a part of the plant a concrete foundation in the basement, on which the engine or motor rested and was firmly fastened; the guideposts running up the sides of the shaft both for the car and the counterweights were firmly fastened to the building; and there were also other parts of the plant physically attached to the building. Indeed, it was installed and attached to the building, generally speaking, in a manner quite familiar to every one who has occasion to visit such buildings. In all outward appearances it seems to be as much a permanent fixture and a part of the building, and as necessary to the ordinary efficient use of the building, as any other permanently constructed part of the building. One buying the property from the owner, or one taking a mortgage on the property from the owner, or one performing labor and furnishing materials for which he would have a lien upon the property, would, we think, without question assume from all outward appearances, he having no knowledge of any special agreement or understanding existing between the owner and the one who installed the elevator plant, that it was a permanent fixture and a part of the realty to which he could look as part of his security.

If this were a controversy between the owner of the building and appellants, the former claiming the elevator plant to be personal property and not a part of the realty, and the latter claiming the plant to be a fixture and a part of the realty subject to their mortgage and lien claims, we would have little hesitancy in holding the plant and all its parts to be a fixture and subject to appellants' mortgage and lien claims. Whatever seeming conflict there may be in the holdings of the courts touching the question of what are fixtures under the varying circumstances of the numerous cases, we know of no holding which would lend substantial support to the claim of this elevator being other than a fixture and a part of the realty as between the owner of the building and appellants. The reasoning of our own decisions, even those holding that the particular property involved was not a fixture is all but conclusive in support of this view of the law. Cherry v. Arthur, 5 Wash. 787, 32 P. 744; Wade v. Donau Brewing Co., 10 Wash. 284, 38 P. 1009; Chase v. Tacoma Box Co., 11 Wash. 377, 39 P. 639; Filley v. Christopher, 39 Wash. 23, 80 P. 834, 109 Am. St. Rep. 853. On the other hand, if it were a controversy between the owner of the building and the Elevator Company as to whether or not the elevator plant is personal property as between them, we would as readily hold it to be personal property, since, by their express agreement that title should remain in the Elevator Company until the purchase price was paid in full, they impliedly agree that as between them it should be regarded as personal property until paid for. Boeringa v. Perry, 96 Wash. 57, 164 P. 773.

We would also hold the...