Rogers v. Crow

• Decision Date: 31 March 1867
• Citation: 40 Mo. 91
• Parties: CHARLES S. ROGERS, FRANCIS WEBSTER, AND RICHARD F. CONINGHAM, TRUSTEES OF ST. PAUL'S CHURCH, ST. LOUIS, Respondents, v. PHILIP CROW, WILLIAM BALLENTINE, AND EDWARD F. PITTMAN, TRUSTEES &c., Appellants.
• Court: Missouri Supreme Court

40 Mo. 91

CHARLES S. ROGERS, FRANCIS WEBSTER, AND RICHARD F. CONINGHAM, TRUSTEES OF ST. PAUL'S CHURCH, ST. LOUIS, Respondents,

v.PHILIP CROW, WILLIAM BALLENTINE, AND EDWARD F. PITTMAN, TRUSTEES &c., Appellants.

Supreme Court of Missouri.

March Term, 1867.

Appeal from St. Louis Court of Common Pleas.

Cline & Jamison, for appellants.

By the refusal of the 4th instruction the court held that gas fixtures could in no case become a part of and pass with the realty as between grantor and grantee, although they be connected with or appurtenant thereto--Cohen v. Kyler, 27 Mo. 122; Winslow et al. v. Merchants' Ins. Co., 4 Metc. (Mass.) 306; Farrar et al. v. Stackpole, 6 Greenl. 154; Voorhis v. Freeman, 2 Watts & S. 116; Brother v. Clowson, 2 Strobh. 478; Harlow v. Harlow, 15 Penn. 507; Buckley v. Buckley, 11 Barb. 43; Roberts v. Dauphin, 19 Pa. 71.

Stoves standing in their places are fixtures--Blether v. Towle, 40 Me. 310. A cistern standing on blocks in a cellar is a fixture--40 Me. 310; Tuttle v. Robinson, 33 N. H. 104.

Sharp & Broadhead, for respondents.

In the case of Burke v. Baxter, 3 Mo. 207, Judge Tompkins laid down the correct rule governing such cases.

See also case of Hunt v. Mullanphy, 1 Mo. 509. This was a case of a kettle and boiler put up in a tannery. The same rule is laid down.

The case of Cohen v. Kyler, 27 Mo. 122, does not overrule the principle laid down in these cases. The other cases from the Missouri Reports are cases where the question arose between landlord and tenant, and in such cases a different and more liberal rule prevails--Finney v. Watkins, 13 Mo. 291; 28 Mo. 70; Freeland v. Southworth, 24 Wend. 191.

Vandepool v. Van Allen et al., 10 Barb. 157, was a case between mortgagor and mortgagee. The court said: “To make an article a fixture, it must not only be essential to the business of the erection, but it must be attached to it some way; at least it must be mechanically fitted, so as in ordinary understanding to make a part of the building itself.”

Walker v. Sherman, 20 Wend. 636--“Nothing of a personal nature in itself will pass unless it be brought within the denomination of a fixture by being in some way permanently, or at least habitually, attached to the land, or some building upon it.”

Articles movable in their nature, attached to the walls of a house by screws or nails are not fixtures--Gibbons on Fixtures, 20 (11 Law Lib.); Farmers' Loan & Trust Co. v. Hendrickson, 25 Barb. 489, in which the doctrine is fully reviewed.

WAGNER, Judge, delivered the opinion of the court.

This was an action commenced in the St. Louis Court of Common Pleas by the respondents to recover the value of certain property which they alleged to be personal chattels belonging to them, and unlawfully possessed and detained by the appellants. From the record it appears that respondents were vestrymen and trustees for St. Paul's Parish a Protestant Episcopal Church in the city of St. Louis, and that in their house of worship they placed an organ, gas fixtures, and other articles, for the convenient occupancy of the same. That being pecuniarily embarrassed they executed a deed of trust conveying the lot on which the house was built, together with all the buildings, erections and improvements to secure the payment of their indebtedness. The notes which the deed of trust was taken to secure not being paid, the trustees in the deed sold the premises to satisfy the same, and on the sale Derrick A. January became the purchaser of the property; January afterwards deeded and conveyed the property to appellants, who are now in possession thereof. On the trial, respondents dismissed their cause of complaint as to several of the articles enumerated in their petition, and the court found that others passed by the sale with the premises as part of the realty, but refused to declare that the gas fixtures and the organ were fixtures, and decided that they were personal property detachable from the real estate, and therefore did not pass with it.

The evidence shows that when the church was erected there was a niche or recess left in the walls over the vestibule, in the front end of the building, expressly for the reception of an organ; that the organ stands on a floor or platform built to receive it, and is fastened to this floor by nails driven through the outer case of the organ into the floor. In the rear of the organ the wall is in a rough unfinished state, and is pretty much without ceiling or finish. If the organ were removed, it would not only destroy the architectural design, finish and symmetry of the building, but would leave exposed to view the unfinished wall in the rear, and the open space above the organ which is now concealed by it. Skillful architects testified that they regarded the organ as a part of the church; the internal finish of the building, architecturally considered, would not be complete without it.

If this contest had arisen between landlord and tenant, it would admit of little doubt; for as between landlord and tenant many things which pass under the general name of fixtures will for the encouragement of trade be permitted to be removed by the tenant during his term, which as between heir and executor, vendor and vendee, or mortgagor and mortgagee, would be considered as part and parcel of the realty, and would therefore belong to the heir, or vendee, or mortgagee.

As to the first point presented in the case, it has been uniformly held that lamps, chandeliers, candlesticks, candelabra, sconces, and the various contrivances for lighting houses by means of candles, oil, or other fluids, are not fixtures, and form no part of the freehold.

In the case of Lawrence v. Kemp, 1 Duer, 363, the New York Superior Court decided that gas fixtures, when placed by a tenant in a shop or store, although fastened to the building, are not fixtures as between landlord and tenant.

In Wall v. Hinds, 4 Gray, 256, it was held that a lessee could take away gas pipes put by him into a house leased to him for a hotel, and passing from the cellar through the floors and partitions, and kept in place in the room by...