Quality Milk Prods. Co. v. Endowment Loan & Mortg. Co.
| Decision Date | 01 October 1935 |
| Docket Number | Case Number: 23666 |
| Citation | 1935 OK 905,51 P.2d 550,175 Okla. 94 |
| Parties | QUALITY MILK PRODUCTS CO. v. ENDOWMENT LOAN & MORTGAGE CO. |
| Court | Oklahoma Supreme Court |
¶0 1. FIXTURES -- Rule Determining Whether Chattel Becomes Part of Realty by Annexation.
The rule for determining whether property ordinarily regarded as personal becomes a part of the realty by annexation is the united application of the following requisites: First, actual annexation to the realty, or something appurtenant thereto; second, appropriateness to the use or purpose of that part of the realty with which it is connected; third, the intention of the party making the annexation to make the article a permanent accession to the freehold
2. SAME--How Intention as to Annexation Inferred.
The intention as to annexation of personal property to realty may in a proper case be inferred from the nature of the article affixed, the relation and situation of the party making the annexation, the structure and mode of annexation, and the purpose or use for which the annexation has been made.
3. APPEAL AND ERROR--INJUNCTION--Disposition of Cause Where Judgment Against Clear Weight of Evidence.
In an action for injunction, when the judgment of the trial court is against the clear weight of the evidence, this court on appeal will reverse such judgment, and may in proper case remand the cause to the trial court, with directions to render the judgment which ought to have been rendered.
Hughes & Ellinghausen and Earl Foster, for plaintiff in error.
Monnet & Savage, for defendant in error.
¶1 This is a companion case to Quality Milk Products Co. v. Young, 175 Okla. 98, 51 P.2d 547, which was appealed from the district court of the same county.
¶2 The facts in that case are the facts here, with the additional facts that in 1928, after Mr. Young had owned the lot and building for about two years, he mortgaged the same to plaintiff to secure his debt to plaintiff, and after the trial court's decision in Milk Products Co. v. Young, supra, this plaintiff instituted suit in the superior court of the same county to enjoin the defendant, the Milk Products Company, from removing the same chattels from the building. It being the contention of the plaintiff here, as it was the contention of Young in the other case, that the machinery, apparatus, and appliances in controversy were a part of the real estate, and, therefore, covered by the plaintiff's real estate mortgage.
¶3 The mortgage to this plaintiff contained a provision that the mortgagor should keep the taxes paid on the property covered by the mortgage. It may be assumed that the plaintiff observed the record as to tax payments made on the machinery and appliances for the years involved by the tenant owners of the same. At the time plaintiff took its mortgage the tenant owner of the chattels was in possession of the same, occupying the buildings, but with the right to remove his property from the building upon termination of his tenancy, and the record shows by the clear weight of the evidence that all of the items here involved can be removed without damage to the building itself. When the plaintiff took its mortgage, if it did not know and observe the true facts, they might have been ascertained by casual inquiry.
¶4 There is nothing to indicate that-the plaintiff, when it took the mortgage in 1928, or later, intended to take a mortgage on the chattels involved, or in fact did do so, or placed any reliance on the chattels being a part of the realty, or claimed any lien on the chattels prior to this litigation. Upon the other hand, the contrary is well indicated.
¶5 Much that we said In Milk Products Company v. Young is applicable, but needs no repetition here. The criterion adopted by many courts, and by this court, for determining whether property ordinarily regarded as personal property becomes a part of the realty is the united application of the following requisites: First, by determining whether the chattel has been actually annexed to the realty or something appurtenant to the realty; second, whether the chattel is applicable to the use or purpose to which that part of the realty with which it is connected is appropriated; third, the intention of the party making the annexation to make the chattel a permanent accession to the freehold. The rule is so stated in the syllabus in Seminole Supply Company v. Seminole Refining Co., 173 Okla. 32, 45 P.2d 1084. See, also, Elerick v....
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