Robertson v. Corsett

• Decision Date: 22 November 1878
• Citation: 39 Mich. 777
• Court: Michigan Supreme Court
• Parties: John A. Robertson v. Charles S. Corsett, George Baker et al. Mary Leonard v. Nettie L. Williams, George Baker et al

39 Mich. 777

John A. Robertson v. Charles S. Corsett, George Baker et al. Mary Leonard v. Nettie L. Williams, George Baker et al

Supreme Court of Michigan

November 22, 1878

Submitted October 30, 1878 [Syllabus Material]

Appeals from Barry.

Foreclosures. Defendants appeal.

Decree modified and remanded for execution. Defendant Baker recovered the costs of this court.

John C FitzGerald for complainants. The test of a fixture is not whether it is so attached that its removal will injure the realty or the building in which it is placed, but whether it is put up for permanent use and is connected with the building and necessary to the business being carried on therein, Quinby v. Manhattan Cloth & Paper Co., 24 N. J. Ch., 260; all articles of machinery placed in a mill by the owner and mortgager, that are useful in the operation of the mill and necessary to complete it, are permanent fixtures as between mortgager and mortgagee, and are hence covered by the mortgage, though not actually fastened to the mill, Winslow v. Merch. Ins. Co., 4 Met. 306; Farrar v. Stackpole, 6 Greenl. 154; Overton v. Williston, 31 Penn. St., 155; Corliss v. McLagin, 29 Me. 115; Morgan v. Arthurs, 3 Watts 140; Noble v. Bosworth, 19 Pick. 315; Voorhis v. Freeman, 2 W. & S., 116; House v. House, 10 Paige 159; Coleman v. Stearns Mfg. Co., 38 Mich. 30; McAuliffe v. Mann, 37 Mich. 539; O'Brien v. Kusterer, 27 Mich. 289; Jones v. Detroit Chair Co., 38 Mich. 92; and the slightest annexation is enough, Burnside v. Twitchell, 43 N. H., 393; machinery placed in a saw-mill after a mortgage upon it has been given, becomes part of the mortgage security, Roberts v. Dauphin Deposite Bank, 19 Penn. St., 71; Butler v. Page, 7 Met. 40; Walmsley v. Milne, 97 E. C. L., 114; Bowen v. Wood, 35 Ind. 268; Frankland v. Moulton, 5 Wis. 1; Daniels v. Bowe, 25 Ia. 403; U. S. v. New Orleans R. R., 12 Wall. 362; Jones on Mortgages, § 445; when one sells machinery with the condition that title shall remain in him until it is paid for and allows it to be put up in a mill by the vendee as part of the mill machinery, and the vendee afterwards mortgages or sells the real estate to an innocent purchaser, the mortgagee or vendee will hold the machinery as against the conditional vendor, who will be estopped from denying that it is part of the realty, Knowlton v. Johnson, 37 Mich. 47; Powers v. Dennison, 30 Vt. 752; Fryatt v. Sullivan Co., 5 Hill 116: 7 Hill 529; Brennan v. Whitaker, 15 Ohio St., 446; Crippen v. Morrison, 13 Mich. 24; Preston v. Briggs, 16 Vt. 124; the machinery in this case should be considered as realty and covered by the mortgages, in view of the manifest intention of the parties, the object of the mills and the use to which the mills and machinery were put, and the mode of attaching it, McRea v. Cent. Nat. Bank, 66 N. Y., 489; Sparks v. State Bank, 7 Blackf. 469; Ores v. Ogelsby, 7 Watts 106; Trull v. Fuller, 28 Me. 545; Pierce v. George, 108 Mass. 78; Longbottom v. Berry, L. R. 5 Q. B., 123; 1 Jones on Mortgages, § 429.

Sweezey & Knappen for defendant Baker. Machinery supported on posts fastened to the floor by wood screws, and removable without injury to itself or to the building was held to be personalty in a case where the building was mortgaged with all the machinery belonging to it, Swift v. Thompson, 9 Conn. 67; looms in a woolen factory and other machinery attached only by cleats or other means to keep it in place are chattels, Murdock v. Gifford, 18 N. Y., 28; Teaff v. Hewitt, 1 Ohio St., 511; Gale v. Ward, 14 Mass. 352; Sturgis v. Warren, 11 Vt. 433; when a factory is mortgaged with its appurtenances, but remains in possession, the machinery that can be easily disconnected from the freehold and used for similar purposes in any other building does not pass on foreclosure, but may be attached as the mortgager's chattels, McLaughlin v. Nash, 14 Allen 136.

OPINION

Cooley, J.

The bill in each of these cases was filed to foreclose a mortgage on the undivided half of certain lands. The controversy is the same in each, and concerns the right to certain fixtures, which are claimed by complainants as a part of the real estate, but have been removed by the defendant George Baker, as personalty.

The land consists of about two acres, with saw-mill upon it. In 1866 the land was owned by Charles S. Corsett and one Miles, and a carding machine was then put in. Some time in 1871, Miles sold his undivided half of the premises to Stephen W. Walrath, and Walrath by arrangement with Corsett put a planing and matching machine into a small building erected for the purpose. The machine was a large one, weighing some 3500 pounds, and was fastened to the floor with bolts. The saw-mill had an upright saw, with suitable gearing and shafting and was run by water power. When the planer and matcher was put in, Corsett and Walrath entered into partnership to operate the machinery on the premises, and Corsett under the arrangement was to be owner of one-half the planer and matcher. On December 20, 1871, Walrath conveyed his undivided half to Nettie L. Williams, and took back a purchase money mortgage, which is the same mortgage being foreclosed in the second of these suits. The land in this deed and mortgage is simply described by metes and bounds, and nothing is said of buildings or fixtures. When Nettie L. Williams purchased, a new partnership was formed under the name of Corsett, Williams & Co., composed of Charles S. Corsett, Charles B. Williams, husband of Nettie L. Williams, and Mrs. Williams, for the purpose of running the saw-mill and other machinery on the premises. In May, 1872, Charles S. Corsett mortgaged his undivided half of the premises to John A. Robertson to secure the payment of money borrowed. This mortgage also described the land by metes and bounds, adding to the description the words "together with the mill." This is the mortgage which is being foreclosed in the first suit. After this mortgage was given, the firm of Corsett, Williams & Co. or Corsett for them, purchased and set up on the premises a moulding machine, a tenoning machine, a morticing machine, a blind slat tenoning machine, a blind wiring machine, and other similar machinery, which the firm from that time made use of in their business. Some of these were fastened to the floor by bolts or braces, and others were not fastened at all. The firm of Corsett, Williams & Co. also added to their power by renting and placing in the mill an engine and boiler, and in September, 1872, these were removed, and an engine and boiler purchased by Mrs. Williams were substituted.

August 1, 1875, a new copartnership was formed, consisting of Charles S. Corsett, Charles B. Williams and George Baker, to carry on business on the same premises, and by means of the machinery already enumerated. It was understood that Williams and Corsett put into the copartnership the use of the real estate and machinery, though what right Williams had to put in what belonged to his wife does not distinctly appear.

Baker put in a thousand dollars in money. At the same time, to secure Baker for any liability he might incur on behalf of the firm, or any moneys he might pay for the other partners Williams and Corsett executed to him a bill of sale of the planer and matcher, the tenoning machine, the moulding machine, and several articles which need not be particularly enumerated. Corsett and Mrs. Williams also severally conveyed to Baker undivided halves of the real estate, in trust to secure him for any indebtedness he might pay for them. Soon after the last partnership was formed, the engine was removed from the premises and another substituted. In May, 1876, Baker sold out his interest in the copartnership to Charles B. Williams. At that time he claimed that § 2027 was owing and secured to him by the bill of sale given to him by Corsett and Charles B. Williams and by the deeds of trust executed by Corsett and Mrs. Williams. At length, in February, 1877, Baker went upon the premises and proceeded to remove from the buildings the following articles, claiming all of them as personal property, the steam engine, planer and matcher, tenoning machine, moulding machine, upright shaping machine, scroll sawing machine, three saw tables and circular saws used thereon, blind slat tenoning...