Patton v. Et. At.

• Decision Date: 10 April 1880
• Citation: 16 W.Va. 428
• Court: West Virginia Supreme Court
• Parties: Patton, Malone & Co. v. Moore et. at.

16 W.Va. 428

Patton, Malone & Co.

v.Moore et. at.

Supreme Court of Appeals of West Virginia.

Decided April 10, 1880.

1. The true rule in determining what are fixtures in a manufacturing establishment, where the land and buildings are owned by the manufacturer, is, that where the machinery is permanent in its character, and essential to the purposes for which the building is occupied, it must be regarded as realty and passes with the building; and whatever is essential to the purposes, for which the building is used, will be considered as a fixture, although the connection between them be such, that it may be severed without physical or lasting injury to either.

2. If an engine and boiler have been bought by the owner of a mill, and hauled upon his grounds into the mill-yard with the bona fide intention of attaching them to the mill, although not yet actually attached thereto, and they are necessary for the purposes for which they are to be used, they must be regarded as a part of the realty, and not liable to the levy of an execution as personal property.

3. If an engine and boiler, after being levied on under an execution, are with the consent of the execution-creditor attached to a mill by the owner, who is the debtor, with the intent that they shall become a part of the realty, the lien of the execution is thereby released.

4. When a flood washes out from a mill the engine, boiler, burrs and mill-irons, which were fixtures in the mill, they are not converted into personal property; and when thus washed out, they are not subject to the levy of an execution.

5. When a purchaser of real property makes permanent improvements thereon attached to the freehold, and then being unable to pay for it surrenders the property to the vendor, without express reservation of the improvements and cancels the contract of purchase the improvements go with the property back to the vendor.

6. Equity will take jurisdiction by injunction to preserve the inheritance; and when a mill is about to be dismantled by execution-creditors of the owner, who have levied on the fixtures attached thereto, equity will interfere to prevent it.

Appeal from and supersedeas to a decree of the circuit court of the county of Ritchie, rendered on the 29th day of October, 1878, in a cause in chancery in said court then pending, wherein Wilson Patton, Samue". Malone and John M. Brown were plaintiffs, and B. F. Moore and others were defendants, allowed upon the petition of said Moore.

Hon. J. M. Jackson, judge of the fifth judicial circuit, rendered the decree appealed from:

Johnson, Judge, furnishes the following statement of the case:

In December, 1877, the plaintiffs filed their bill in the circuit court of Ritchie county, alleging that the plaintiff, Patton, purchased of Daniel Rexroad one half of a certain tract of land in Ritchie county containing seventeen acres, upon which was located a water grist and steam saw-mill; that at the time of said purchase there were attached to said mill as fixtures "two run of burr mill-stones, a saw-mill engine, and boiler that A. S. Core was the owner of the other half interest in said land and mill-property; and that the said Patton, on the 26th day of May, 1859, purchased the said interest of said Core. Said contract was in writing; but no deed had been made in pursuance thereof, as the purchase-money had not been paid; that Rexroad had purchased his interest in said property from said Core, but that no deed had been made, and consequently the legal title to the whole of said property was in said Core; that on the 26th day ot July, 1861, said Patton sold and assigned to one Charles Meserve the interest he had purchased of said Core; that on the 16th day of January. 1867, said Meserve sold and assigned his said interest to Martin Cochrane, he, Cochrane, assuming to pay the purchase- money due from said Meserve to Patton, whereupon the "said Meserve delivered up to said Patton the paper so assigned, and the said Cochrane entered into a written contract with the said Patton for the purchase of the said interest in the said property, which is known as the " Ritchie Virginia Mills"; that said Cochrane being unable to pay the purchase-money, at the earnest solicitation of said Cochrane said Patton took back said interest and all the fixtures thereto belonging or appertaining, and surrendered to said Meserve the notes by him executed for the purchase-money, and Patton took possession of the entire mill and fixtures; subsequently said Patton sold to one Samuel Malone one half interest in said property, and to John M. Brown one fourth interest in said property, and retained for himself one fourth interest therein; that A. S. Core still holds the legal title to the whole of said mill-property, because all the purchase-money has not been paid to said Core.

The bill further alleges that at the December term, 1870, of the circuit court of Ritchie county, Charles Meserve for the use of B. F. Moore recovered a judgment against Martin Cochrane for $489.16 with interest and costs; that upon said judgment executions issued from time to time; that upon said executions is endorsed the levy of the sheriff, into whose hands the executions were placed; that in said levy the following articles are embraced: "One small engine and boiler, two carding machines and pickers, one set of burrs, and a lot of mill irons, as the property of Martin Cochrane;" that since the said levies with a return of the sheriff thereon a venditioni exponas has been issued by the proper officer directed to John B. Hallam, sheriff of Ritchie county, commanding him to sell the property named therein, to wit: u One engine and boiler, and set of burrs and lot of mill-irons;" that said sheriff has advertised said property for sale.

The bill further alleges, that the engine and boiler, and set of burrs and mill-irons so levied on belonged to said mill, and were attached thereto, and were fixtures, and absolutely necessary to the purposes for which said mill was established, and their removal therefrom would stop the said mill and render it useless; that said articles were fixtures in said mill, before this mill was purchased from Core, and have so remained ever since.

The bill made the necessary parties defendants, and prayed an injunction to the sale of the said property. The exhibits referred to in the bill are filed therewith.

On the 31st day of December, 1877, the judge of the circuit court of Ritchie county granted the injunction according to the prayer of the bill.

On the 25th of April, 1878, the defendant, B. F. Moore, filed a general demurrer to the plaintiffs' bill, which was subsequently overruled. The said defendant answered the bill, to which the plaintiffs replied generally. The answer avers that the engine and boiler were sold by Patton and detached and removed from said mill before the sale to Meserve, and taken several miles away, and sometime after, said Patton and Cochrane purchased said engine and boiler, and removed them to E.Uenboro, West Virginia, and, after they had run the same some time, sold them, and they were removed out of the county of Ritchie into the county of Doddridge, and that when Cochrane became the owner of an interest in the mill, there were no engine and boiler attached, and the engine and boiler, which were in the mill when Patton purchased of Rexroad, were in the county of Doddridge; that Martin Cochrane was the undisputable owner of the whole of said mill-property after his purchase from Meserve, until he sold to Patton in 1867. The answer denies that the engine and boiler levied upon by John Heaton, while sheriff were part of said mill, or in any way attached to it at the time of the levy; that the levy by sheriff Mitchell during his term of office was on the same engine and boiler; that at the time of the levy by sheriff Mitchell the said engine and boiler were attached to the mill, and avers that at that time there was no mill for it to be attached to. The answer denies, that the engine, boiler, one set of burrs and mill-irons were attached to the mill, when the levy was made. The answer avers, that Patton was informed of said levy, when he purchased of said Cochrane, and that Cochrane did not sell said engine and boiler to Patton. The pleader is evidently referring to the surrender of the property to Patton by Cochrane, who was unable to pay for it.

The defendant, A. S. Core, answered the bill; and in his answer says, the legal title to the said property is still in him, and that the purchase-money therefor, amounting, as he says, at the time of filing his answer to about $600 is still due and unpaid; that, when he sold the mill, there was attached thereto an engine, boiler, and two sets of burr mill-stones, and if the same were removed at any time by the equitable owners of the property, it was done without his knowledge or authority; that he claims a lien on the said machinery attached to the said mill including engine, boiler and mill-stones, as a part of the realty, for his said purchase-money.

A number of depositions were taken in the cause. So much only of the testimony will be set out as bears upon the question, whether the property levied upon and exposed for sale under the venditioni exponas, were chattels or fixtures.

Wilson Patton says, when he purchased an interest in the mill from Rexroad, there were in the mill "two run of burrs, mill-stones, a saw mill, engine and boiler." He says, that the property levied on," one small engine and boiler, two carding machines and pickers, one set of burrs and one lot of mill-irons," are fixtures belonging to said mill and were always so, except the carding machines; that they are not the property of Martin Cochrane, and were not at the date of the levy; that said engine and boiler and set of burrs were absolutely necessary to the purposes for which the mill was established, and their removal would render the mill valueless. All the property except the engine and...