Muehling v. Magee

• Decision Date: 03 February 1913
• Citation: 153 S.W. 787
• Parties: MUEHLING v. MAGEE.
• Court: Missouri Court of Appeals

153 S.W. 787

MUEHLING v. MAGEE.

Springfield Court of Appeals. Missouri.

February 3, 1913.

On Motion for Rehearing, March 3, 1913.

1. FRAUDS, STATUTE OF (§ 72) — FIXTURES — SEVERANCE — ORAL AGREEMENT.

A boiler or any trade fixtures may be sold or severed or transferred and made personalty by oral agreement.

2. FIXTURES (§ 21) — BONA FIDE PURCHASERS — NOTICE.

Where a grantee in a deed has notice that a boiler on the premises did not belong to the grantor, but that it had been agreed between the grantor and another that it belonged to such other person, it did not pass under the deed, though there was no reservation, since what is a fixture is largely a matter of intention.

On Motion for Rehearing.

3. EVIDENCE (§ 461) — PAROL EVIDENCE — DEEDS — FIXTURES.

Evidence that a grantee in a deed knew that a boiler on the premises had been severed by oral agreement, and that it was personalty and belonged to another than the grantor, is not inadmissible as varying the terms of the deed.

Appeal from Circuit Court, Jasper County; David E. Blair, Judge.

Suit by W. H. Muehling to restrain John H. Magee, from removing a boiler from certain real estate. Judgment for defendant, and plaintiff appeals. Affirmed.

This is a suit by injunction, instituted in the circuit court of Jasper county on June 24, 1911; the object being to enjoin the respondent from removing a steam boiler from the mill of the appellant, located in the city of Carthage. The property in question is known as the "canning factory," and consists of several lots and a brick factory building located thereon. The boiler in question stood in a portion of this building; and there is no doubt that it was firmly imbedded in solid masonry, and used by the owner when put in as a part of the realty, and thus became a part thereof, and that, to remove the boiler, it would be necessary to tear down a part of the brick wall in order to get it out of the building. The boiler was placed in its present location about the year 1889, and was used to run a canning factory. After numerous conveyances, the title to the property became vested in the Bank of Carthage on the 23d day of April, 1897; and in 1907 the Bank of Carthage conveyed the property to the Carpenter & Shaffer Manufacturing Company, a corporation organized for the purpose of handling produce. On the 10th day of January, 1911, the Carpenter & Shaffer Manufacturing Company conveyed the property by general warranty deed to the plaintiff, W. H. Muehling. There never was a physical severance made of the boiler. In none of the conveyances does any reservation of the boiler appear. It is admitted that the defendant, Magee, was threatening to remove, and would have removed, the boiler from the premises, had he not been restrained by this action.

The answer of the defendant was a general denial, together with a claim of the ownership of the boiler, and right of possession thereof by virtue of an oral agreement, which was made between the Bank of Carthage and the Carpenter & Shaffer Manufacturing Company and himself when the manufacturing company became the owner of the property, which oral agreement was alleged to be well known to the plaintiff before he purchased the property, and before he received his unconditional deed therefor.

The plaintiff objected to the introduction of any oral testimony with reference to the understanding had between the parties owning the property prior to his deed for the following reasons: (1) Because there being no reservation in the deed, and the boiler, having once become a part of the realty, brought it within the statute of frauds, which would require a deed or an actual removal to work a severance; (2) because, his deed being absolute on its face, no testimony should be admitted which would vary its terms.

The preponderance of the testimony objected to by the plaintiff shows that the manufacturing company never claimed to own the boiler; that it was understood between that company and the Bank of Carthage and Magee that they were buying all the lots and the building, but not the machinery which was in the building, including this boiler, and that most of the machinery was removed after the manufacturing company took possession; but that the boiler had remained there with the understanding that it did not belong to them; and that, before they sold to the plaintiff, they told him of this understanding with reference to the boiler, and told him they did not own it, and were not selling it to him. This testimony was denied by the plaintiff; but the issues were found in favor of the defendant by the chancellor, which finding is, in our opinion, supported by the greater weight of the evidence, and is therefore correct.

The question to be decided here is, May a grantee in a deed maintain a suit in equity to enjoin the removal of a boiler from the premises conveyed in his deed, when he knew that his grantor did not own the boiler, and that it belonged to some one else, and when that information was known by him prior to his purchase and deed? And, in this connection, whether oral testimony against his claim to the boiler is inadmissible merely because his deed contained no reservation. The trial court, over plaintiff's objection, admitted such testimony, and found the issues in favor of the defendant, dismissing plaintiff's bill, and authorizing the defendant to remove the boiler, conditioned on a bond given to restore the walls of plaintiff's building in the condition they were prior to its removal.

J. D. Harris, of Carthage, for appellant. McReynolds & Halliburton, of Carthage, for respondent.

FARRINGTON, J. (after stating the facts as above).

The rulings with reference to fixtures in this as well as other states cannot be entirely harmonized; but the general tendency of the decisions, in determining what is or is to become a fixture, is to look more to the intention of the parties than to physical attachment to the realty. Hence the cases are numerous that a house, machinery, etc., may be placed on land in a permanent manner; but, if the parties by agreement show an intention that such shall not become a part of the realty, it will not so attach, and will remain personalty as between such parties and those claiming under them with notice. Hines v. Ament, 43 Mo. 298; Neiswanger v. Squier, 73 Mo. 192 (in the latter case, the terms of the lease allowing removal were extended by oral agreement); Esther v. Burke, 139 Mo. App. 267, 123 S. W. 72....