Lakeside Resort Corp. v. Sprague

• Decision Date: 31 January 1936
• Docket Number: No. 102.,102.
• Citation: 274 Mich. 426,264 N.W. 851
• Parties: LAKESIDE RESORT CORPORATION v. SPRAGUE et al.
• Court: Michigan Supreme Court

274 Mich. 426

264 N.W. 851

LAKESIDE RESORT CORPORATION

v.SPRAGUE et al.

No. 102.

Supreme Court of Michigan.

Jan. 31, 1936.

Action by the Lakeside Resort Corporation against William A. Sprague and another. Judgment for plaintiff, and defendants appeal.

Affirmed.Appeal from Circuit Court, Ingham County; Leland W. Carr, judge.

Argued before the Entire Bench, except NELSON SHARPE, J.

Wm. C. Brown, of Lansing (C. F. and E. T. Hammond, of Lansing, of counsel), for appellants.

Cummins & Cummins, of Lansing, for appellee.

BUSHNELL, Justice.

The parties agree that only one question is involved. It may be stated as follows: Should the trial court have held as a matter of law that the so-called amusement park equipment, listed in plaintiff's affidavit for a writ of replevin, was real estate?

The disputed matters were submitted to a jury; plaintiff had a verdict for the return of the property and 6 cents as damages for its retention.

The property in controversy was the usual amusement park equipment, consisting generally of the following items:

(1) Roller coaster structure of wood, a 75 horsepower motor and wiring, 440-foot link belt chain, 6 roller coaster cars, complete coaster chain drive, and a ticket booth.

(2) Aeroplane swing, 76-foot steel tower and gearing, 6 aeroplane cars with motors and cable, 25 horsepower motor with starting equipment and wiring, and ticket booth.

(3) Kentucky Derby, 12 iron horses and 12 governing wheels and connections.

(4) Dodgem equipment, steel floor, wire mesh ceiling and frames, bumper springs and board, electric switch, and ticket booth.

(5) A 2,000 gallon water tank, pump and motor with the necessary equipment, 2 batteries of sanitary toilets and the necessary tanks, partitions, and overhead plumbing.

(6) Outside electric wiring system, conduits and wiring above ground to buildings and motors.

(7) Power house equipment, including switches, wiring, and fuse boxes, excepting, however, current transformers and meters.

(8) Six flood lights.

In 1927, Michigan Catering Company conveyed by warranty deed to Pine Lake Company certain real estate then in use as an amusement part on which land the property in dispute is now located. It took back a $30,000 mortgage on the land and at the same time these parties entered into a separate sales agreement covering the amusement park equipment, etc. This agreement provided for retention of title in the seller until the sum of $10,000 and accrued interest was paid. A detailed list of the property was attached to the agreement, which, in general, consisted of:

(1) Machinery, such as a launch, power lawn mower, popcorn machines, carousal, circle swing, Kentucky Derby, electric power pump, motors, wiring, penny arcade, merry-go-rounds, rowboats, tents, organs.

(2) Fixtures, such as soda fountains, iceboxes, pool room equipment, gasoline tank and pump, skee ball alleys, park benches and tables, office furniture, kitchen and dining room equipment.

(3) Buildings consisting of ticket and dispensing stands, concession row, cigarstore, stages, and lumber.

The contemporaneous deed, mortgage, and sales agreement fixed the character of the property so far as the parties thereto were concerned and the sales contract expressly provided for the removal and replacement by the buyer of any unsuitable property. When the transaction was completed the land stood as security for the $30,000 balance of the unpaid purchase money and the equipment as security for an additional sum of $10,000 which has since been paid.

Subsequently, the real estate mortgage wa assigned to John C. Reid, former manager of the Catering Company, and in 1932, he became the owner of the land by sheriff's deed at a mortgage foreclosure sale. The premises were later sold by Reid on land contract to defendants Sprague.

Lyle Clift, who was secretary and treasurer of Pine Lake Company, the original grantee, purchased the assets of that company at a bankruptcy sale in 1932. He was acting at the time for the trustee of the holders of second mortgage bonds of Pine Lake Company, and in 1933 this group of bondholders organized plaintiff Lakeside Resort Corporation and took over these assets.

When the latter company attempted to remove property from the premises in 1934, a dispute arose, and Reid, then the owner of the land, entered into an agreement with plaintiff which attempted to preserve the status quo and continue the operation of the enterprise. The agreement of 1934 sets up Reid's claim that the roller coaster and circle swing are a part of the realty; it recognized the title of plaintiff to the miniature railway, merry-go-round, and Dodgem equipment, but is silent as to the remainder of the disputed property.

Defendants' answer to plaintiff's declaration in replevin is that the purchase of the realty carried with it title to all the property described in the writ of replevin, hereinbefore generally noted as the ‘property in controversy.’

Appellants Sprague argue that subsequent vendees without notice are not bound by the terms of the deed, mortgage, and the several agreements. The question, however, is neither stated in the ‘reasons and grounds for appeal’ nor referred to in appellants' ...