Royce v. Latshaw

• Decision Date: 08 October 1900
• Citation: 62 P. 627,15 Colo.App. 420
• Parties: ROYCE v. LATSHAW.
• Court: Colorado Court of Appeals

62 P. 627

15 Colo.App. 420

ROYCE v. LATSHAW.

Court of Appeals of Colorado

October 8, 1900

Appeal from district court, Pueblo county.

Action by Henry C. Royce against Ida M. Latshaw. From a judgment for defendant, plaintiff appeals. Affirmed.

M.J. Galligan, for appellant.

S Harrison White, for appellee.

WILSON J.

This action was instituted to recover the possession of two lots in the city of Pueblo, together with the improvements thereon. Plaintiff claimed title through a deed of trust, a trustee's deed, and a warranty deed from the purchaser at the foreclosure sale. The answer denied the right of plaintiff to the possession, and specially alleged that the defendant was the owner of the greenhouse, and the heating apparatus therefor, situate upon these lots. At the trial the right of plaintiff to the possession of the lots, and all improvements thereon, except the greenhouse and its appurtenances, was conceded, and the title to the latter therefore, is the only question in controversy. Pending this suit, and prior to trial, the defendant attempted to remove the greenhouse and heating apparatus, and the plaintiff secured a temporary injunction restraining her from so doing. The motion to dissolve the injunction was denied, the court stating that this would be considered and determined as a part of the main suit. When the case was reached for trial nothing remained to be determined but the question in regard to the ownership of the greenhouse, and the hearing was had in the injunction proceedings which would determine this question. The suit, therefore, became one in equity. The material facts necessary to be stated, so far as we can glean them from the two printed abstracts presented by the respective parties, are about as follows: In 1884 Mrs. Latshaw, the defendant, engaged in the business of cultivating and raising flowers and plants for sale. Her greenhouse and the heating apparatus, which was a part of it, stood partly upon each of two lots owned by J.C. Latshaw, from whom it is undisputed that she had a permit and license for this purpose. About April, 1888, Mr. Latshaw sold one of these two lots to a Mrs. Bain, and about the same time Mrs. Bain bought from Mrs. Lambert a lot immediately adjoining the one purchased from Latshaw, these two constituting the lots for the possession of which this suit was brought. Near the same time of these purchases of real estate by Mrs. Bain she bought from Mrs. Latshaw the greenhouse and appurtenances, located as we have stated, and continued the business in which Mrs. Latshaw was engaged. In December, 1889, Mrs. Bain sold a two-thirds interest in the greenhouse and heating apparatus, and all things connected with the floral business, to one H.C. Webster. A partnership was then formed under the firm name of Bain & Webster, for the carrying on of the floral business, and was so continued until January 30, 1892. Some time after, the precise date not being fixed and not being material, a part or all of the greenhouse was removed so as to be situated entirely upon one or both of the two lots owned by Mrs. Bain; what reconstruction that was necessary being done with the old material and with such new as was required. The firm of Bain & Webster paid rent to Mrs. Bain for the use of the ground occupied by the greenhouse and heating apparatus. On December 30, 1891, after the greenhouse had been so removed entirely upon the lots of Mrs. Bain, and while the firm of Bain & Webster was in existence, in possession of the greenhouse, and carrying on the floral business, Mrs. Bain executed the deed of trust, through the foreclosure of which the plaintiff claims title. Shortly subsequent to this, on January 30, 1892, Mr. Webster sold his interest, which was a two-thirds in the greenhouse and business, to a Mr. Fleischer, taking a chattel mortgage thereon for deferred payments. On the same day Mrs. Bain executed a lease, in writing, granting to Fleischer & Bain and their assigns the right to occupy the necessary ground with their greenhouse, heating apparatus, etc., and giving the right and privilege to the firm or its assigns to remove the greenhouse, heating apparatus, and all things pertaining thereto at the expiration of the lease. This lease was recorded. Thereafter the firm of Fleischer & Bain continued to do business. Some time afterwards (date not being material) Fleischer sold one-half of his interest to the defendant, Mrs. Latshaw, and the firm then became and continued in business as Fleischer, Bain & Latshaw. There were several sales afterwards by various members of the firm, and the firm changed in part at intervals, but these facts are not material. It finally resulted in Mrs. Latshaw, the defendant, becoming the sole owner of the greenhouse and the business and of the heating apparatus. Afterwards the trust deed was foreclosed, and trustee's deed executed January 19, 1898, to the purchaser, who afterwards, prior to the institution of this suit, executed a warranty deed to the plaintiff.

The first and main question to be determined is one of fact namely, were this greenhouse and the heating apparatus trade fixtures? We might content ourselves by saying that the court found them to be such,...