Pioneer Savings & Loan Co. v. Fuller
| Decision Date | 20 April 1894 |
| Docket Number | 8387 |
| Citation | 58 N.W. 831,57 Minn. 60 |
| Parties | Pioneer Savings & Loan Co. v. Anson E. Fuller |
| Court | Minnesota Supreme Court |
Submitted on briefs April 4, 1894.
Appeal by plaintiff, the Pioneer Savings and Loan Company, a corporation, from an order of the District Court of Hennepin County, Seagrave Smith and Frederick Hooker, JJ., made July 11, 1893, denying its motion for a new trial.
Elwood S. Cook owned lot seven in block sixteen of Calhoun Park Addition, Minneapolis, with the dwelling house thereon and on July 1, 1890, mortgaged it to plaintiff to secure the payment of $ 4,000 and interest. The house was not completed and Cook agreed to finish it according to plans and specifications. These included a mantle, grate and tiling. On June 13, 1891 the mortgage was foreclosed and the house and lot sold by the sheriff to the plaintiff for $ 4,369.49 and a certificate of sale executed and recorded. The sale was made under a power contained in the mortgage and the premises were subject under 1878 G. S. ch. 81, § 13, to redemption at any time within twelve months thereafter. On September 10, 1891, Cook leased the property to the defendant, Anson E. Fuller, for a year and agreed with him that he might place a mantel, grate and tiling in the house for a fireplace, and in case Cook desired to purchase them he could do so at cost; otherwise defendant could remove them. Fuller put them in and had them set in the usual manner. They were worth $ 40. About June 1 1892, Cook notified Fuller that he did not desire to purchase, and prior to June 13, 1892, defendant took down the mantel, grate and tiling and stored them on the premises. He remained in the house until September 10, 1892, when he removed and took away the mantel, grate and tiling. The real estate was not redeemed from the foreclosure sale and plaintiff became the owner thereof and brought this action to recover the possession of the mantel, grate and tiling claiming they were fixtures and a part of the house and became its property by the foreclosure and non-redemption. The defendant answered, a jury was waived and the action tried by the court. Findings were made of these facts and judgment ordered for defendant. Thereupon plaintiff moved the court on notice to set aside the findings and grant a new trial. Being denied it appealed.
Order affirmed.
George D. Emery, for appellant.
By virtue of its mortgage plaintiff became entitled, at common law, by statute and by the terms of the mortgage itself, to all improvements and fixtures subsequently placed on the land whether with, or without, its consent. If Cook had himself placed the mantel, grate and tiling in the building he could not have removed or detached it without the consent of the mortgagee. How then could he convey the right to another to do that which he could not do himself. The placing of this mantel, grate and tiling, was in exact performance of one of the conditions on which the loan was originally made. The house was to contain one mantel, &c. Cherry v. Arthur, 5 Wash. St. 787; Butler v. Page, 7 Met. 40; Arnold v. Crowder, 81 Ill. 56; Merritt v. Judd, 14 Cal. 60; Roberts v. Dauphin Deposite Bank, 19 Pa. St. 71.
If a mortgagor lease the mortgaged premises and the tenant erects fixtures thereon with the understanding with the mortgagor that they will be removable at the end of the term, they become a part of the realty and cannot be removed by the tenant as against the mortgagee. Frankland v. Moulton, 5 Wis. 1; Lynde v. Rowe, 12 Allen 100; Smyth v. Sturgis, 108 N.Y. 495; Hunt v. Bay State Iron Co., 97 Mass. 279; Voorhees v. McGinnis, 48 N.Y. 278; Wright v. Gray, 73 Me. 297; Woodham v. First Nat. Bank, 48 Minn. 67.
Goebel & Gjertsen, for respondent.
The foreclosure sale does not give ownership. The purchaser's title is not complete until the time for redemption has expired. Donnelly v. Simonton, 7 Minn. 167; Loy v. Home Ins. Co., 24 Minn. 315; Berthold v. Holman, 12 Minn. 335; Tifft v. Horton, 53 N.Y. 377.
Cook had the right to make the agreement with Fuller, and Fuller had the right to remove the mantel in question as he did, according to the agreement. Ferris v. Quimby, 41 Mich. 202; Globe Marble Mills Co. v. Quinn, 76 N.Y. 23.
An agreement may be made between the owner and his tenant that a chattel may be attached to the freehold, and thereafter and before the expiration of the lease, removed by the tenant, provided it can be detached without material injury to the realty. The chattel does not become a part of the realty or lose its character as personal property. Ford v. Cobb, 20 N.Y. 344; Warner v. Kenning, 25 Minn. 173; Stout v. Stoppel, 30 Minn. 56; Shapira v. Barney, 30 Minn. 59; Little v. Willford, 31 Minn. 173; Ingalls v. St. Paul, M. & M. Ry. Co., 39 Minn. 479.
When plaintiff bid in the property on June 13, 1891, it bid it in without the mantel, as at that time it was not yet placed in the building. There was no injury to the freehold and none was claimed by plaintiff. It received just what it expected at the sale under foreclosure, and has nothing to complain of.
A fire frame may be removed. Gaffield v. Hapgood, 17 Pick. 192. A furnace may be removed. Baldwin v. Merrick, 1 Mo.App. 281; Kelsey v. Durkee, 33 Barb. 410. Hearth stone may be removed. Poole's Case, 1 Salk. 368. Grates and ranges fixed in brick work may be removed. Lee v. Risdon, 7 Taunt. 188; Rex v. St. Dunstan, 4 B. & C. 686. Even a chimney may be removed. Moore v. Wood, 12 Abb. Pr. 393.
A mortgage given upon chattels which afterwards are attached to the freehold, is paramount and superior to a prior real estate mortgage. First Nat. Bank v. Elmore, 52 Ia. 541; Eaves v. Estes 10 Kans. 314; Tifft v. Horton, 53 N.Y. 377; Henry v. Von Brandstein, 12 Daly 480; Miller v. Wilson, 71 Ia. 610; Lansing I. & E. Works v. Walker, 91 Mich. 409.
When the annexation of a chattel to real property by a tenant is of such a nature that it can be detached without being materially injured, and without material injury to the things real to which it is annexed, and there is an agreement between a landlord and the tenant that the chattel shall remain personal property notwithstanding the annexation, the chattel will, as between them, retain that character. Warner v....
To continue reading
Request your trial