Lacey v. Giboney

• Decision Date: 31 October 1865
• Citation: 36 Mo. 320
• Parties: A. T. LACEY, TRUSTEE OF J. R. WATHEN, Respondent, v. ANDREW GIBONEY, Appellant.
• Court: Missouri Supreme Court

36 Mo. 320

A. T. LACEY, TRUSTEE OF J. R. WATHEN, Respondent,

v.ANDREW GIBONEY, Appellant.

Supreme Court of Missouri.

October Term, 1865.

Appeal from Cape Girardeau Circuit Court.

Krum & Decker, for appellant.

Glover & Shepley, for respondent.

I. The action was rightly brought in the name of the plaintiff, and the evidence supported the claim of ownership. The attempted sale, when no money passed, no memorandum of sale was given, and no delivery of property, and when the conditions of the sale were not complied with, passed no title out of Lacey.

II. The machinery being placed in and upon said premises leased by the tenant, can be removed by him and are not fixtures; for, 1. Any construction put up by the tenant for manufacturing purposes, no matter how securely it may have been united to the freehold, can be removed by the tenant. This is the case of a building constructed for that purpose. (Powell v. McAshan, 28 Mo. 70.) And even in the case of grantor and grantee, articles attached to the freehold more strongly than the machinery, were held not to be fixtures. (Hunt v. Mullanphy, 1 Mo. 508.) 2. But in this case it is not necessary to go to any such extent; the case here bringing it clearly within that class about which the decisions have for years been clear and uniform. The machinery bin was simply bolted down to timbers, and could be removed without injury to the freehold. (Turner v. Johnson, 7 Mo. 43; Finney v. Watkins, 13 Mo. 209.)

LOVELACE, Judge, delivered the opinion of the court.

This was an action commenced in the Circuit Court of Cape Girardean county, to recover specific personal property consisting of a steam engine, boiler and machinery necessary for running a chair factory, and also a corn mill, with its machinery attached to said engine. The petition of the plaintiff sets out that he is the owner and entitled to the possession of the property in question, which he alleges is of the value of seventeen hundred dollars; and that the defendant wrongfully withholds and detains the same from the plaintiff to his damage, &c.

The answer of the defendant denies that the plaintiff is the owner of the property, or entitled to the possession thereof, or that he wrongfully detains the same from the plaintiff, and denies damages, &c.

On the trial the plaintiff, to support his case, offered in evidence a deed of trust in the nature of a mortgage from one John M. Cleely, to secure the payment of certain liabilities which Cleely owed to Ignatius R. Wathen. Some of these liabilities consisted of notes which Cleely had executed with Wathen as security. It was an ordinary deed of trust to secure the payment of money; providing the manner in which the trustee should proceed to sell the property in case default was made in the payment of the money intended to be secured. But as no question arises upon the construction of the deed, it is unnecessary to set out its provisions more particularly.

The plaintiff also introduced evidence showing that he had attempted to sell the property under the deed, and that the sale was forbidden by the agent of the defendant; and although the sale continued, and the property was bid off by various persons, it does not appear that the property was ever delivered or any money paid. The plaintiff also proved that the property was owned by Cleely at the time of executing the deed, and that it was used by him in carrying on a chair factory; that he had it put up in a house which he had leased from the defendant; that Cleely held the possession of the house of defendant under his lease, and the property in dispute, until about the time or a short time before the attempted sale by the trustee, about which time, at the request of the agent of defendant, he had given up the key of the house in which the machinery was kept to said agents. The case was submitted to the court, sitting as a jury, and a judgment rendered for the plaintiff, to reverse which an appeal is taken to this court.

I. It is difficult for the record, in this case, to tell exactly what specific ruling of the court below is complained of. It is contended here, however, that the plaintiff failed to show any title in himself, or any right to the possession of the property sued for. The parties, however, have not taken the trouble to point out to the court exactly what this defect consists in. They do say something about there being no forfeiture in the deed of trust. But the deed itself sufficiently proves a forfeiture; for several of the...