Kirch v. Davies

• Decision Date: 14 March 1882
• Citation: 11 N.W. 689,55 Wis. 287
• Court: Wisconsin Supreme Court
• Parties: KIRCH v. DAVIES.

55 Wis. 287

11 N.W. 689

KIRCH

v.DAVIES.

Supreme Court of Wisconsin.

Filed March 14, 1882.

Appeal from circuit court, Jackson county.

Replevin for certain trade fixtures removed by the defendant from a building used as a manufactory of wagons and fanning mills. The defendant was theretofore the owner of the lots on which said building stood, but had conveyed the same to the plaintiff by deed duly executed by himself and his wife. The principal questions determined by this court arise upon that deed. It is necessary, therefore, to quote a considerable portion of it. Commencing with the description of the property conveyed, the deed is as follows: “All of lots Nos. three and four (3 and 4) in block No. fourteen, (14,) in the village of Mazomanie, together with the buildings thereon, and also the following described property connected with or situated in and about the premises above described, to-wit: 1 wood lathe, 1 sand machine, 1 whittler, 1 mortising machine, 1 gauge cut-off saw and table, 1 fine cut-off saw and table, 1 swing saw and table, 1 planer, 1 rip saw and table, 1 axle lathe, all the wagon hubs in the machine wood-shop except 50 sets, 1 engine and boiler attached to the shop, and the heater belonging to said boiler and engine, 1 small grindstone and table, 1 iron drill, 1 iron lathe, all the patterns except wagon skeins and grave-yard fence patterns, one-half of the hand blacksmith tools, 1 hand punch, 1 big anvil and right-hand bellows and small vise, 1 hand drill made by Davies & Bros., all the flasks in and about the factory except one of each kind, 2 carpenter's benches, all belts and pulleys belonging to or connected with the machinery and machines situated in said building, and hereby conveyed; the said Nathaniel T. Davies to have the right to occupy said premises for the period of 30 days next following the date hereof, without interfering with the right of said Kirch to enter upon said premises at any time during said 30 days for the purpose of making repairs and improvements upon and of said property and premises; to have and hold the same, together with all and singular appurtenances and privileges thereunto belonging or in anywise thereunto appertaining; and all the estate, right, title, interest, and claim whatsoever of the said parties of the first part, either in law or equity, either in possession or expectancy, to the only proper use, benefit, and behoof of said party of the second part, his heirs and assigns, forever; the said Nathaniel T. Davies, within said 30 days, to have the right to remove from said premises all property not hereby specially conveyed.”

The building contained a large number of machines attached as fixtures not enumerated in the deed, and the power from the engine was distributed to all of the machines by main shafts, pulleys, and belts. In addition to the main shafts there were counter-shafts connected immediately with some of the machines enumerated in the deed. Within the 30 days specified in the deed, the defendant took down and removed from the building the main shafts, the pulleys thereon, and the belts connecting the pulleys with the machines, together with certain other minor fixtures specified in the pleadings and verdict. He also removed the cupola. On the trial the plaintiff was allowed to amend his complaint by inserting therein certain articles not specified in the original. In the amended complaint the plaintiff claims to recover all of the property (except the engine, boiler, and heater) specified in the deed, and in addition thereto all of the property specified in the verdict. The cupola was claimed in the original complaint.

It is admitted by the defendant, in his answer to the original complaint, that “at the date of the commencement of this action he was in possession of certain of the belts and pulleys described in said complaint, and of all the shafting, and of the cupola described in said complaint, and that he refused to deliver to the plaintiff the said belts and pulleys, shafting and cupola; and defendant also admits that the plaintiff is the owner of all the remainder of the property specifically described in the plaintiff's complaint.” The answer also contains a general denial of all other averments of the complaint except the averment of the value of the property, and also an allegation that the defendant is “the lawful owner, and lawfully entitled to the possession, of the portion of the belts and pulleys described in the complaint which was in his possession at the time of the commencement of this action, as above admitted, and of all of said shafting and the said cupola.” No answer was interposed to the amended complaint.

A large amount of testimony was introduced, sufficient reference to which will be found in the opinion. During the trial it was admitted and agreed by the respective counsel “that the defendant took all the property described in the complaint except what is specifically described in the deed; that the value of that property is $400; that the value of the property specifically named in the deed (which is also mentioned in the complaint) is $400, which was not taken by the defendant; that the damage to the plaintiff in getting this machinery back to its place was $25; that all this property was taken by the officer, and is now in possession of the plaintiff; and that the property specially described in the deed and also in the complaint belongs to the plaintiff.”

The jury, by direction of the court, returned the following verdict: “We find for the plaintiff; that the plaintiff was owner of all the property described in the amended complaint except the blower; that the same was of the value of $800; that the defendant wrongfully took possession of all the belts, shafting, pulleys, boxes and cups, tin tubing and dividers, hangers, belt-chippers, lathe-chucks, center rests, bolts, box caps, face plate, and cast-iron plates, and detained the same from the plaintiff, and that the value of the same is $400; and that the plaintiff's damages for such taking and detention were $25; and that the plaintiff is entitled to all the property described in the complaint except the blower.”

Judgment was duly entered pursuant to the verdict, from which the defendant has appealed.

H. W. Chynoweth, for respondent.

Smith, Rogers & Frank, for appellant.

LYON, J.

It appears by the evidence that the defendant removed the property, which, under the direction of the court, the jury found he wrongfully took possession of, from the building conveyed by him to the plaintiff, and had loaded a considerable portion of it on a railway car, for transportation, when the writ of replevin was served. Although the property had been theretofore fixtures and part of the realty, by the act of the defendant it became personally subject to seizure under a writ of replevin. If any of such property belonged to the plaintiff, we find nothing in his deed from the defendant which gave the defendant the right to the possession of it, although removed within the 30 days specified therein, or which deprived the plaintiff of the right to its immediate possession. During that 30 days both parties had a possessory right in the premises for certain purposes; but the defendant reserved no right to remove from the building any property which he conveyed to the plaintiff, or to interfere therewith any further than was necessary for the purpose of removing the property excepted from the conveyance. The learned circuit judge so...