Lasch v. Columbus Heating & Ventilating Co

• Decision Date: 16 March 1932
• Docket Number: No. 8650.,8650.
• Court: Georgia Supreme Court
• Parties: LASCH. v. COLUMBUS HEATING & VENTILATING CO.

174 Ga. 618

163 S.E. 486

LASCH.

v.COLUMBUS HEATING & VENTILATING CO.

No. 8650.

Supreme Court of Georgia.

March 16, 1932.

Syllabus by the Court.

1. The decisions in the First Division of the Court of Appeals, as announced in Williams v. Ideal Plumbing Co., 41 Ga. App. 607, 154 S. E. 212, and Colonial Hill Co. v. Moncrief Furnace Co., 43 Ga. App. 204, 158 S. E. 343, are in conflict with the decision of the Second Division of that court as announced in Skinner v. Stewart Plumbing Co., 42 Ga. App. 42, 155 S. E. 97. This court is of the opinion that the decisions of the First Division of the Court of Appeals announce the true law upon the question involved, and are in harmony with the decisions of this court.

2. It is generally held by the decisions of the courts in this country that the rights of a purchaser of realty, without notice of the claim of the seller of fixtures, are unaffected by the latter's retention of title thereto or reservation of the right to retake them upon default in the payment of the purchase price.

3. On the other hand, where purchasers of realty take with notice of the rights of a seller of chattels under written contracts duly attested and recorded, in which the seller retains title to the same until paid for, such purchasers of the realty to which such chattels are attached take subject to the rights of the conditional sellers of the chattels. This principle is coupled with the qualification that such chattels must be susceptible of retaining the character of personalty, and not become merged with the realty by incorporation therein, as in the familiar instance of materials which have been an integral part of buildings. Besides, such chattels must be capable of being removed without material injury to the realty itself.

4. Our statute provides for the record of retention-title contracts, and makes such record notice to the world. An entry of filing, in the index book kept by the clerk for filing for record mortgages and other liens on personalty, of an instrument retaining title to personalty in the seller thereof until the purchase price is paid, and the record of such instrument, are notice to a subsequent purchaser of the realty to which such personalty is attached, of the title of the seller to the latter.

Certified Question from Court of Appeals.

Suit between O. B. Lasch and the Columbus Heating & Ventilating Company, in which the party first named brings error to the Court of Appeals, and the Court of Appeals certifies a question.

Question answered.

The Court of Appeals requested the instructions of this court upon the following question, which is necessary to a decision of this case:

"Where personal property (a furnace and its fixtures) was sold under a written contract wherein it was agreed that the furnace and all its fixtures should remain the personal property of the seller until all of the purchase-price was fully paid, and that in default of such payment the seller, without molestation, could enter the premises where the furnace had been installed and remove the furnace and its fixtures; and where subsequently the furnace and fixtures were installed by the seller in the house of the purchaser in such manner that they apparently became a part of the real estate, and in such a manner that but for said title-retention contract they would have become a part of the realty, but where they did not by such installation lose their identity, but on the contrary were capable of identification, and remained detachable fixtures which could be removed without materially injuring the value of the realty or the value of the fixtures; and where the title-retention contract was duly filed in the office of the clerk of the superior court of Fulton County, Georgia (the county where the purchaser of the furnace resided and where the furnace was installed), and was recorded in mortgage book 566, page 535, and properly indexed on the chattel-mortgage records, said recording being done subsequently to the execution of said contract and the installation of the furnace, and more than five months before the real estate to which the furnace was attached was sold to the defendant in this action in trover; and where the title-retention contract was recorded as a chattel mortgage only, and there was nothing of record on the land records of the county to indicate the existence of such a contract; and where the defendant in this action in trover purchased the said real estate in good faith without actual knowledge or actual notice of the title-retention contract, and believed that the said heating apparatus would pass to her with the conveyance of the real estate; and where said heating apparatus was never paid for, and the title-retention contract remains unsatisfied on the records and is still held by the seller of the heating apparatus (the plaintiff in this action in trover), did the title to the heating apparatus pass to the defendant in this action in trover? Upon this question of law the decisions of the first division of this court (Williams v. Ideal Plumbing Co., 41 Ga. App. 607, 154 S. E. 212, and Colonial Hill Co. v. Moncrief Furnace Co., 43 Ga. App. 204, 158 S. E. 343) appear to be in conflict with the decision of the second division of this court in Skinner v. Stewart Plumbing Co., 42 Ga. App. 42, 155 S. E. 97, and because of such conflict the above-stated question is propounded."

Jones, Evins, Powers & Jones and Ralph Williams, all of Atlanta, for plaintiff in error.

Chas. G. Bruce, of Atlanta, for defendant in error.

HINES, J.

1. As we view the question, the above decisions of the First Division of the Court of Appeals clearly conflict with the above decision of the Second Division of that court. We are of the opinion that the decisions of the First Division of the Court of Appeals announce the true law upon the question involved. These decisions accord with the rulings of this court. Columbus Heating & Ventilating Co. v. Burt, 166 Ga. 158, 142 S. E. 551; Wofford Oil Co. v. Weems-Fuller Co., 166 Ga. 173, 142 S. E. 887; Touchstone Live Stock Co. v. Easters, 172 Ga. 454, 157 S. E. 683; Shippen v. Georgia Power Co., 172 Ga. 913, 159 S. E. 268. The identical question involved in this case was decided in the case last cited. In the present case we are asked to review and reverse the decision in that case. As the decision in that case was not by a full bench, it can be reviewed and reversed without the concurrence of all the justices of this court, if such concurrence is necessary to reverse a full-bench decision. We are of the opinion that the law announced in that case is the true law upon this subject. In support of this proposition we shall now refer to some other decisions of this court and to the decisions of courts in other jurisdictions upon this subject.

2. It is generally held by the decisions in this country that the rights of a purchaser of the realty without notice of the claim of the seller of fixtures are unaffected by the latter's retention of title thereto, or reservation of the right to retake them upon default in the payment of the purchase price. In re W. O. Craig Mfg. Co. (D. C.) 201 F. 54S; Simpson Brick-Press Co. v. Wormley, 166 111. 383, 46 N. E. 976; Allis-Chaliners Co. v. City of Atlantic, 164 Iowa, 8, 144 N. W. 346, 52 L R. A. (N. S.) 561, Ann. Cas. 1916D, 910; Smith Paper Co. v. Servin, 130 Mass. 511; Ridgeway Stove Co. v. Way, 141 Mass. 557, 6 N. E. 714; Wentworth v. S. A. Woods Mach. Co., 163 Mass. 28, 39 N. E. 414; Knowlton v. Johnson, 37 Mich. 47; Watson v. Alberts, 120 Mich. 508, 79 N. W. 1048; Arlington Mill, etc., Co. v. Yates, 57 Neb. 286, 77 N. W. 677; Haven v. Emery, 33 N. H. 66; Landigan v. Mayer, 32 Or. 245, 51 P. 649, 67 Am. St. Rep. 521; Washburn v. Inter-Mountain Min. Co., 56 Or. 578, 109 P. 382, Ann. Cas. 1912C, 357; Blanchard v. Eureka Planing Mill Co., 58 Or. 37, 113 P. 55, 37 L. R. A. (N. S.) 133; Union Bank & Trust Co. v. Fred W. Wolf Co., 114 Tenn. 255, 86 S. W. 310, 108 Am. St. Rep. 903, 4 Ann. Cas. 1070; Dav enport v. Shants, 43 Vt. 546. One of the reasons which has been assigned to support the above rule is that, as the seller agrees that the fixtures shall be converted in all outward appearances into real property, he assumes the risk of their being sold as such, as it would be contrary to justice to allow the seller to save himself by casting the consequences upon the purchaser of the real estate. Knowlton v. Johnson, supra; AllisChalmers Co. v. City of Atlantic, supra. In ...