Patton v. Phoenix Brick Co.
| Decision Date | 11 November 1912 |
| Parties | LIZZIE PATTON, Respondent, v. PHOENIX BRICK CO., Defendant; THE BONNOT COMPANY, Intervenor, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Buchanan Circuit Court.--Hon. Wm. D. Rusk, Judge.
AFFIRMED.
Judgment affirmed.
Spencer & Landis for appellant.
(1) The seller of machinery fixtures, which are sold under a conditional sales contract, or where a chattel mortgage is given at the time of the sale to the seller, gives the seller a superior right and title to the fixture, to that of a prior mortgagee of the land and machinery. Anderson v. Creamery Co., 67 P. 493 (Idaho) ; Binkley v. Forkner, 19 N. E. (Ind.), 753; Northwestern Mut. Life Ins. Co. v George, 79 N.W. 1028; Edwards Lumber Co. v Bank, 77 N.W. 765; General Electric Co. v. Transit Co., 42 A. (N. J.) 101; Willis v. Munger Mfg Co., 36 S.W. 1010; Duffus v. Howard Furnace Co., 40 N.Y.S. 925; Hendy v. Dinkerhoff, 57 Cal. 3; Ellison v. Salem Coal Co., 43 Ill.App. 120; Cochran v. Flint, 57 N.H. 514; Bernheimer v. Adams, 175 N.Y. 472; Paine v. McDowell, 71 Vt. 28, 41 A. 1042; German Savings v. Weber, 47 P. 224. (2) The distinguishing feature marking the difference between a fixture real and personal property is not altogether as to how the property may be attached to the building or ground as to it permanency, but the intention of the parties, buyer and seller, when the property is placed on the land finally determines its nature. Iron Works v. Iron Works, 143 Mo.App. 6; Pile v. Holloway, 129 Mo.App. 593; General Electric Co. v. Transit Co., 42 A. (N. J. Ch.) 101.
John E. Dolman for respondent.
(1) The undisputed testimony shows (record 24 and 25) that the represses were necessary to make a complete brick manufacturing plant and that it was the intention of the proprietor to make them, and he did make them, a permanent part of his factory; that he could not run his brick manufacturing establishment nor use it for the purposes intended without these machines. This being true, the machines became part of the realty and when affixed to the factory, passed to the mortgagee of the real estate, under both deeds of trust. Press Brick Co. v. Brick Co., 151 Mo. 501; Crane v. Const. & Real Estate Co., 121 Mo.App. 209; Ottawa Iron Works v. Muir, 126 Mo.App. 582; Iron Works v. Iron Works, 143 Mo.App. 1-6. There is no room in this case to infer what the intention of the proprietor was with reference to these represses because he testifies that it was his intention when he bought them to make them, and that he afterwards did make them, a permanent part of his manufacturing plant. A conditional sale contract, unless recorded, is void as to all creditors, prior or subsequent, and even with or without notice. Collins v. Wilhoit, 108 Mo. 451; Gilbert Book Co. v. Sheridan, 114 Mo.App. 332; Oyler v. Renfro, 86 Mo.App. 321. The action of appellant in taking and recording his chattel mortgage over a year after respondent had parted with its money did not place it in any better position, since it stood in the same relation to respondent as does the holder of an unrecorded mortgage to subsequent creditors--as to respondent the mortgage was invalid. Babbitt v. Kelley, 96 Mo.App. 529; Dry Goods Co. v. Brown, 73 Mo.App. 245; Williams v. Kirk, 68 Mo.App. 457; Bank v. Buck, 123 Mo. 141.
--Plaintiff sought to foreclose two deeds of trust executed by the defendant brick company, the first on the 29th of July, 1902, and the second on the first of May, 1909. The Bonnot Company intervened in the action, claiming that two "repressed brick machines" found in the brick company's plant and claimed to be covered by the deeds of trust, were its property. On a trial of that question the judgment in the circuit court was against the intervenor and it appealed.
We will dispose of the case as it has been put by intervenor, and only discuss plaintiff's rights under the second deed of trust. The evidence in intervenor's behalf discloses that by written contract dated the 22d of March, 1909, it sold and delivered the machines to the brick company with the agreement that the title should remain in it until the balance of the purchase price, amounting to $ 1200, was paid. Subsequently, on the first of October, 1910, the brick company executed to intervenor a chattel mortgage to secure the unpaid balance. The contract of sale was not recorded, but the subsequent mortgage was.
On the 16th of August, 1909, the plaintiff loaned the brick company $ 16,000 and took the bonds secured by the deed of trust dated the first of May, 1909, as security therefor, and had no notice of the conditional sale to the brick company, and as shown by the dates, the chattel mortgage to intervenor was not executed until more than a year thereafter. The deed of trust last mentioned used these words, after describing the real estate: "Together with all of the buildings, kilns, tunnels, machinery, fixtures, brick machines, suction and exhaust fans, engines, boilers, brick cars, turntables, railway tracks and rails, dry pans, elevators, screens, and also all other improvements, fixtures and property belonging or appurtenant to, or used in connection with, the brick manufacturing and other business of said brick company."
The represses, though bought on the 22d of March, as above stated, were not installed in the plant until June or July following. That, as will be seen by the dates, was after the deed of trust was given upon which plaintiff relies, but before she made the loan on the faith of such deed.
From the foregoing it appears that the contract of conditional sale was prior in time to the date of plaintiff's loan. But it was not recorded. It was void as to creditors prior or subsequent, even with notice. [Collins v. Wilhoit, 108 Mo. 451 (s. c., 35 Mo.App. 585); Gilbert Book Co. v. Sheridan, 114 Mo.App. 332, 89 S.W. 555; Oyler v. Renfro, 86 Mo.App. 321.] And it was likewise void as to subsequent purchasers in good faith.
The plaintiff's loan and taking the bonds secured by the deed of trust on August 16, 1909, made her the beneficiary under that deed of trust (Norwalk Iron Works v. Bank, 145 S.W. 866) from that date, free from any claim of a conditional sale. And the chattel ...
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