Schellenberg v. Detroit Heating & Lighting Co.

• Decision Date: 25 April 1902
• Citation: 130 Mich. 439,90 N.W. 47
• Parties: SCHELLENBERG v. DETROIT HEATING & LIGHTING CO.
• Court: Michigan Supreme Court

90 N.W. 47

130 Mich. 439

SCHELLENBERG v. DETROIT HEATING & LIGHTING CO.

Supreme Court of Michigan

April 25, 1902

Appeal from circuit court, Wayne county, in chancery; Joseph W Donovan, Judge.

Injunction by Plum B. Schellenberg against the Detroit Heating &amp Lighting Company. From a decree for defendant, the plaintiff appeals. Affirmed.

Franklin L. Lord, for appellant.

George W. Bates, for appellee.

LONG J.

The bill in this case was filed to enjoin the execution of a writ of replevin by which it was sought by the defendant to take and remove two steam boilers sold to Harry L. Schellenberg the husband of complainant, on a title contract, and placed in the basements of two dwelling houses. These dwelling houses are owned by Harry L. Schellenberg and his wife as by an estate in entirety as husband and wife. It appears that the husband bought these boilers to put in the buildings for heating purposes, the defendant reserving the title to itself by the contract until the boilers were paid for. Payment being refused, replevin suit was brought for the two boilers against Schellenberg and his wife and the tenants in the buildings. On the trial of the replevin suits, the defendant in the present case had judgment against Schellenberg for the return of the property, the judgment not passing against the wife or the tenants. It is stated in the present bill that when these boilers were sold to Harry L. Schellenberg the defendant knew they were to be attached to the dwellings in a permanent way, and saw the plan of the construction of said buildings and of the heating apparatus to be placed therein; that the complainant believes the defendant will attempt to remove the boilers, and asks that it be enjoined from removing or attempting to remove the same. The defendant demurred to the bill on the grounds: (1) That is does not show jurisdiction in a court of chancery; (2) that complainant has not by said bill stated a case which entitles her to the relief prayed; (3) that the bill does not show on its face that the complainant has any such interest in the subject-matter of the suit as entitles her to file it; (4) that the question as to whether the boilers can be treated as fixtures is a matter not within the jurisdiction of a court of chancery, and whether they can be taken on execution in replevin is a matter which can only be determined in a court at law; (5) that it appears by the bill that the constable is a necessary party, as it appears he was proceeding to take the boilers under process in his hands and remove them from the buildings; (6) that it does not appear by the bill that the amount in controversy exceeds $100. This demurrer was sustained in the court below, and the bill dismissed. Complainant appeals.

We think the court was not in error in sustaining this demurrer. The title of the real estate is in the husband and wife jointly, who hold it by the entirety. The boilers were purchased by the husband and placed in the buildings under contract, reserving title to the defendant company. The wife was not a party to this contract, and the boilers never became fixtures in the buildings. There was no unity of title in this property and the real estate. It does not matter that the bill alleges that the boilers became attached and became a part of the real estate. The statements in the bill are sufficient to show that they never attached to the real estate, and never became fixtures. In Adams v. Lee, 31 Mich. 440, the title to the real estate was in one Kaufman. Machinery was put into the...