McFadden v. Allen

• Citation: 134 N.Y. 489,32 N.E. 21
• Parties: McFADDEN v. ALLEN et al.
• Decision Date: 01 October 1892
• Court: New York Court of Appeals

134 N.Y. 489

32 N.E. 21

McFADDEN

v.ALLEN et al.

Court of Appeals of New York, Second Division.

Oct. 1, 1892.

Appeal from supreme court, general term, third department.

Action by Alexander McFadden against Van Buren Allen and others to recover damages for the conversion of a blacksmith shop, two additions to a sawmill, the water wheel, a large portion of the machinery in the mill, a pump, and the lightning rods attached to the building. From a judgment of the general term (3 N. Y. Supp. 356,) affirming a judgment of nonsuit entered by the circuit court, plaintiff appeals. Affirmed.

Parker, J., dissenting. 3 N . Y. Supp. 356 , affirmed.

C. A. Kellogg, for appellant.

John C. Keeler, for respondents.

FOLLETT, C. J.

In determining, as between mortgagor and mortgagee, whether articles are or are not fixtures, the same rules prevail which are applicable to cases arising between grantors and grantees. Snedeker v. Warring, 12 N. Y. 170;Gardner v. Finley, 19 Barb. 317;Laflin v. Griffiths, 35 Barb. 58;Robinson v. Preswick, 3 Ed w.Ch. 246; Main v. Schwarzwaelder, 4 E. D. Smith, 273; 1 Dart, Vend. (6th Ed.) 607; 1 Jones, Mortg. § 428. And as between mortgagor and mortgagee the same rules are applicable to articles placed on the mortgaged premises by the mortgagor after the execution of the mortgage. Gardner v. Finley, 19 Barb. 317;Rice v. Dewey, 54 Barb. 455, 472; Sullivan v. Toole, 26 Hun, 203; Walmsley v. Milne, 7 C. B. (N. S.) 115, 135; Winslow v. Insurance Co., 4 Metc. (Mass.) 306; Ex parte Belcher, 4 Deac. & C. 703; Ex parte Reynal, 2 Mont. D. & D. 443; 1 Jones, Mortg. § 436; 1 Sudg. Vend. (7th Amer. Ed.) p. 37, note 1; Phoenix Mills v. Miller, 4 N. Y. St. Rep. 787. In the case last cited the rule was well stated as follows: ‘A mortgagee of real property is entitled to have his lien respected as to all that was realty when he accepted the security; also as to all accessions to the realty; save, perhaps, when the accession is made under an agreement with the party that its purchase price or expense shall be secured and is secured by a lien thereon.’ The same rules apply to articles annexed to the premises by a subsequent grantee or vendee in possession under an executory contract to purchase. Eastman v. Foster, 8 Metc. (Mass.) 19; Lynde v. Rowe, 12 Allen, 100;Glidden v. Bennett, 43 N. H. 306;Cooper v. Adams, 6 Cush. 87;Ogden v. Stock, 34 Ill. 522;Poor v. Oakman, 104 Mass. 309, 318; 1 Washb. Real Prop. p. 2, par. 4. Bearing these general rules in mind, it remains to apply them to the particular facts involved in the case at bar, which briefly are as follows: Jeremiah McFadden was the owner in fee of 18 acres of land, upon which was a millpond, sawmill, dwelling, and barn. December 11, 1878, he mortgaged the property to Orson Wallace to secure the payment of $400 five years thereafter, with semiannual interest, which mortgage was duly recorded September 2, 1879. The plaintiff, a son of Jeremiah McFadden, occupied the premises from December, 1879, until May 21, 1887, when he was ejected by a writ of assistance issued in and in pursuance of a sale made by virtue of a judgment foreclosing said mortgage. The plaintiff testified that it was orally agreed between himself and his father that the former should take possession of the property, have the use of it, and, when he had paid the mortgage, he was to have a deed. The son was to make such improvements as he chose, with the right of removing them if he failed to pay the mortgage and acquire the property. Under this contract the son occupied the property for nearly eight years, and added to it some new buildings and machinery. Under this contract the plaintiff became the equitable owner of 18 acres, and on paying the mortgage could have compelled a conveyance of the legal title by his father. Freeman v. Freeman, 43 N. Y. 34. The plaintiff could have devised the land, and had he died intestate his interest held under this oral contract would have descended to his heirs subject to the dower right of his widow. Cogswell v. Cogswell, 2 Ed w.Ch.231-239;Griffith v. Beecher, 10 Barb. 432;Warren v. Fenn, 28 Barb. 333; Dayt. Sur. (3d Ed.) 630. While in possession of the 18 acres under this arrangement with the father, the plaintiff and his father, with their wives, executed a mortgage on the 18 acres and another parcel of 37 acres, June 16, 1885, to secure $634.26, to Frances L. and Anna M. Harrison, who were made defendants in the action to foreclose the first mortgage, and they became the purchasers at the sale, and afterwards conveyed to the defendant. It is not asserted that Wallace, the first mortgagee, or the Misses Harrison, had notice, actual or constructive, of the alleged contract between the father and the son. The son, by the execution of the mortgage, treated the 18 acres as his own, and the buildings and the machinery as a part of it, and he cannot now be permitted to assert, as against the Misses Harrison or the defendant, their grantee, that the buildings and machinery were not fixtures.

The plaintiff, his wife, Jeremiah McFadden, his wife, Frances L. Harrison, and Anna M. Harrison were defendants in the action brought by Orson Wallace to foreclose his mortgage, and were personally served with the summons and complaint in that action. The complaint contained this allegation; ‘The plaintiff further shows upon information and belief that Alexander McFadden, Lunetta McFadden, Frances L. Harrison, Anna M. Harrison, and Truman Jones have, or claim to have, some interest in or lien upon said mortgaged premises, or some part thereof, which interest or lien, if any, has accrued subsequently to the lien of said mortgagee.’ None of said defendants appeared in the action and a judgment of foreclosure was recovered by default, pursuant to which the sale before mentioned was made, and the writ of assistance was issued. The plaintiff's rights in the 18 acres were subsequent in time to the mortgage given to and foreclosed by Wallace, which was alleged to be a lien on the property, prior in law and equity to the rights of the plaintiff in this, and the defendant in the foreclosure, action. If the...