M. L. Virden Lumber Co. v. Sherrod
| Citation | 167 Miss. 297,139 So. 813 |
| Decision Date | 21 March 1932 |
| Docket Number | 29595 |
| Court | United States State Supreme Court of Mississippi |
| Parties | M. L. VIRDEN LUMBER CO. v. SHERROD et al |
In materialman's lien case, evidence established that motors and other machinery installed in cotton seed warehouse became part of building and freehold (Code 1930, section 2258).
Generally, fixtures and machinery annexed to building so as to be incapable of being removed without damage to building become part of building and freehold.
Fixtures annexed, by mortgagor and his purchaser, to freehold after recording of trust deed, became subject thereto.
Where fixtures annexed to freehold became subject to recorded trust deed, and mortgagee purchased property at foreclosure sale, he had paramount lien which ripened into ownership as against materialmen's lien claimant, mortgagor, and his purchaser (Code 1930, section 2258).
Motors, fans, pipes, conveyors, and other like machinery installed in cotton seed warehouse held not "trade fixtures."
Plaintiff need not prove fact admitted by pleadings.
Mortgagee purchasing at foreclosure sale held bound by waiver in pleadings in favor of materialman's lien claimant of paramount position, if any (Code 1930, section 2258).
Where defendant, claiming lien on fixtures, offered no evidence whether fixtures were part of realty, it must stand on appeal on evidence of plaintiff claiming materialman's lien.
APPEAL from circuit court of Coahoma county HON. W. E. ALCORN, JR., Judge.
Action by the M. L. Virden Lumber Company against C. F. Sherrod, Jr., M. L. Virden, and others. From the judgment, plaintiff and M. L. Virden appeal. Reversed and rendered.
Reversed and judgment here for appellant.
Percy, Strauss & Kellner, of Greenville, and J. M. Talbot, of Clarksdale, for appellants.
John W. Crisler, of Clarksdale, and Wells, Jones, Wells & Lipscomb, of Jackson, for appellee.
Briefs of counsel not found.
Argued orally by J. M. Talbot and Ernest Kellner, for appellant.
M. L. Virden Lumber Company, a corporation, appellant here, filed its petition to enforce a materialman's lien on certain real property and certain fixtures located on a described lot of land for the sum of one thousand, one hundred ninety-nine dollars and forty-seven cents. Attached to its petition were fifty-two invoices for materials alleged to have been furnished in the repair or change in construction of a certain warehouse located on the lot described; also there was a note for that amount executed in favor of the M. L. Virden Lumber Company, in which it was specifically agreed that the lien was not extinguished by the execution of the note.
The Dixie Warehouse Company, C. F. Sherrod, Jr., "and all other persons, firms or corporations claiming a lien on, or interest in, the property," were made parties defendant. Upon an amendment of the petition, the Federal Cotton Seed Storage Company was made a party defendant. Sherrod appeared and filed a plea setting out a petition in bankruptcy. The Federal Cotton Seed Storage Company appeared and filed an answer and notice of nonjoinder. There was publication for the Dixie Warehouse Company.
The Federal Cotton Seed Storage Company in its answer denied that there was a materialman's lien existing on the lands described, because the M. L. Virden Lumber Company had lost its lien, for the reason that, at the time the material was furnished, M. L. Virden, as an individual, was the owner of the purchase-money note secured by a deed of trust on the lands described, and before suit was filed herein said deed of trust had been foreclosed on said property and M. L. Virden had acquired, by trustee's deed, the land and property so sold. The answer specifically denied that there was any lien on the fixtures located in the building, that it was interested only as a user of the warehouse under an arrangement with Sherrod, alleged to be a lessee of Virden, the owner. The answer further alleged that M. L. Virden, the owner of the property in question, was a necessary and proper party to the proceedings.
Virden appeared and filed a plea to the effect that he had actual and constructive notice at and before the time the materials were furnished to the Dixie Warehouse Company, or C. F. Sherrod, Jr., and at and before the foreclosure sale at which Virden was the purchaser on August 11, 1930. He alleged that the fixtures in the building located on the land in controversy were wholly and entirely his property, had become a part of the realty, and were "subject to the rights of the said plaintiff," and he prayed that an issue be joined between him and the Federal Cotton Seed Storage Company.
The M. L. Virden Lumber Company filed its replication to the plea and notice of nonjohider of the Federal Cotton Seed Storage Company, which denied that the deed of trust of Virden was a prior lien on the property, and denied that the Federal Cotton Seed Storage Company owned the fixtures and equipments located in the building, and averred that, if the Federal Cotton Seed Storage Company had acquired any right, it was subsequent to the filing in the chancery court by the plaintiff of a lis pendens notice of its claim to a materialman's lien. The replication further noted the fact that M. L. Virden had appeared in court and filed his plea.
The evidence on behalf of appellant is in substance as follows: That the material was furnished to the Dixie Warehouse Company and/or C. F. Sherrod, Jr., to be used in a change or alteration of a warehouse so as to install therein and affix thereto certain motors, fans, pipes, conveyors, and other like connected machinery. In order to effect this alteration, it was necessary to remove part of the sides of the building, parts of the floors on the ground floor and on the second story, and construct pillars to support the building. The evidence further shows that the machinery in question was firmly and securely annexed to the building. In connection therewith there was also a lighting equipment. The major portion of this machinery seems to have been for the purpose of more adequately loading and unloading cotton seed into the building. It is shown that the floor for a space of six feet wide by five hundred feet long was torn out, and that, in order to restore the building to the condition it was in before the installation of this machinery, an expenditure of one thousand five hundred dollars would be required; that the building could not be used for any purpose, unless rebuilt; that where the fans and conveyors were placed would have to be rebuilt entirely, and the floor space would have to be filled in and rebuilt. The effect of the change by the installation of the machinery in the building was to make it, as reflected by this record, a more adequate and modern storage warehouse for cotton seed.
The following record of conveyances was offered in evidence by the M. L. Virden Lumber Company: On October 1, 1928, M. L. Virden, individually, executed a warranty deed in favor of C. F. Sherrod, Jr., to the lot of land and warehouse described in the petition. On the same date C. F. Sherrod, Jr., executed to Farish, trustee, a deed of trust on the same property to secure the payment of nineteen notes, two thousand, five hundred dollars each, and one note for one thousand dollars, payable at intervals within ten years. On August 11, 1930, Ernest Kellner, as substituted trustee, foreclosed said trust deed and executed a trustee's deed to the property described to M. L. Virden, the mortgagee and purchaser at the sale. The petition in this case was filed subsequent to this trustee's sale and deed. The material furnished herein was in 1929 and prior to March, 1930.
The appellant, plaintiff in the court below, further offered in evidence the bill of sale executed by the Dixie Warehouse Company, dated July 11, 1930, signed by C. F. Sherrod, Jr. president, and H. J. Landry, secretary, of the Dixie Warehouse Company, conveying certain machinery described as being in this warehouse to C. F. Sherrod, Jr., and subsequent thereto C. F. Sherrod, Jr., conveyed the same machinery to the Federal Cotton Seed...
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