Sims v. Williams

• Decision Date: 05 May 1969
• Docket Number: No. 8746,8746
• Citation: 441 S.W.2d 385
• Parties: Mathew SIMS, Clarence Fausett and Ernest Yates, as Trustees of the Pentecostal Tabernacle Church, now affiliated with the Church of God, Plaintiffs-Appellants, v. J. T. WILLIAMS, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 385

441 S.W.2d 385

Mathew SIMS, Clarence Fausett and Ernest Yates, as Trustees of the Pentecostal Tabernacle Church, now affiliated with the Church of God Plaintiffs-Appellants, v. J. T. WILLIAMS, Defendant-Respondent.

No. 8746.

Springfield Court of Appeals, Missouri.

May 5, 1969.

Rolland L. Comstock, Springfield, for plaintiffs-appellants.

E. W. Collinson, Springfield, for defendant-respondent.

FRANK W. HAYES, Special Judge.

This is an action in replevin by appellants who, as trustees, seek to recover eighteen church pews formerly installed in the Pentecostal Tabernacle Church at 3010 West Nichols, Springfield, Missouri. The respondent claims them as fixtures attached to said building at the time he purchased the church building at a foreclosure sale on March 10, 1965. The trial court found for respondent on his counterclaim and assessed his damages at $1,800. The sole question on appeal is whether the church pews were fixtures and a part of the real estate or were personal property belonging to appellants.

In late 1963, the membership of the Pentecostal Tabernacle Church began the construction of a new church building at the above address. Title to the real estate was taken in Guy Wolfe, Ernest Lafferty and Mathew Sims, as trustees. A building loan was obtained and a deed of trust, presumably in standard form, was executed to secure it. Payments on the loan were made by funds mainly arising from offerings, donations, etc.

The church pews were purchased from The School of the Ozarks for about $2,000 and were delivered in February 1964. The pews were installed and attached, with help of a power gun, to the building with heavy bolts which were screwed into holes made into the floor of asphalt tile laid on concrete. Cleats were attached to the bolts and screwed onto the pews and fastened with a tap.

Dissension arose among the members. The old trustees were removed and appellants were elected trustees of the Pentecostal Tabernacle Church of God which affiliated with the Church of God. As such they replevied the pews on November 6, 1965. The evidence disclosed that the installation and removal of the pews defaced the floor. There were snow white discolorations where the pews had rested and holes around the places where the bolts had been inserted in the flooring in holes filled with lead. The removal of the pews broke some of the bolts and cracked some of the tile which could not be repaired and broke out some of the concrete. Some of the tile was loose, disfigured, not level, and defaced.

The evidence of the intention of those installing the pews was conflicting. Pastor Fausett and Trustee Sims testified it was intended to remove the pews later to an addition to the building. Trustees Lafferty and Wolfe denied this. There was no evidence that any addition to the building would be built in the foreseeable future or that these pews would be superseded by others more suitable. These pews were adapted for use in this building which was to be used as a church and were annexed to the real estate by being securely bolted to the floor and their removal defaced the floor and damaged the building. The pews were part of the real estate at time of delivery of the deed of trust and at time of the foreclosure sale. At the sale, the respondent inquired if pews went with the church and attorney John Lewis, who handled foreclosure, stated they 'can't be removed out of the church.' None of the members present contradicted this statement. Sometime after the sale, there was a conference at which respondent, appellants, and Messrs. Warren, Lafferty and others, including Pastor Fausett, were present and they discussed what was to be done with personal property of the church. No claim was made that the church pews belonged to appellants, but certain other personal property was claimed by appellants.

This case was tried before the court without a jury. It is the duty of this court to review the case de novo and, in doing so, this court will weigh the competent evidence and reach its own conclusion as to the facts, giving due regard to the more favorable position of the trial court to judge the credibility of witnesses. Euge v. Blase, Mo., 339 S.W.2d 807; Fisher v. Miceli, Mo., 291 S.W.2d 845; Blanke v. Miller, 364 Mo. 797, 268 S.W.2d 809; Nixon v. Franklin, Mo., 289 S.W.2d 82; Cannon v. Bingman, Mo.App., 354 S.W.2d 894; Lewis v. Wolfe, Mo.App., 413 S.W.2d 314, where it is said, L.c. 317:

'At the same time, where the evidence is conflicting and close, and particularly when the decision depends upon conflicting oral testimony and the credibility of witnesses, the appellate court should generally defer to the findings of the trial court unless it is satisfied they should have been otherwise. Leggett v. Missouri State Life Ins. Co., Mo., 342 S.W.2d 833, 850(2); In re Petersen's Estate, Mo., 295 S.W.2d 144, 148(3).'

In deciding the issues herein, it must first be determined whether the church pews in question are 'fixtures' and by what tests such decision is reached. The rule is well stated in Bastas v. McCurdy, Mo.App., 266 S.W.2d 49, where the court says, L.c. 51:

'(1--3) A fixture is an article of the nature of personal property which has been so annexed to the realty that it is regarded as a part of the land and partakes of the legal incidents of the freehold and belongs to the person owning the land. The term is expressive of the act of annexation and necessarily implies something that has existed apart from realty but which may, by being attached thereto, become a part thereof. Whether an article is a fixture or not depends upon the facts and circumstances of the particular case.'

In defining the 'elements of a fixture,' the court says, L.c. 51:

'(4, 5) In the case of Matz v. Miami Club Restaurant, Mo.App., 127 S.W.2d 738, 741, this court stated the well established rule that the 'elements of a 'fixture' * * * are commonly said to be annexation, adaption, and intent, with the latter ordinarily of paramount importance, at least in the case of controversies between seller and purchaser, * * * where the controlling question is usually that of whether the intention in annexing the article to the realty was to make it a permanent accession to the land.' These elements or tests all present questions of fact and are not ordinarily resolvable by law. Goodwin v. Elleardsville Hall Ass'n, 5 Mo.App. 289.'

In arriving at the intention with which the annexation was made, the appellants rely on the statements of Pastor Fausett, who was present at the time the pews were installed, to the effect that she anticipated they would be moved to another and larger place and they wanted them to be easily removable. The court, however, is not bound by such testimony. As is said in Bastas v. McCurdy, supra, 266 S.W.2d L.c. 51--52:

'(6, 7) In determining the intention of the person making the annexation the court or jury is not bound by his testimony on this point, nor by his secret or undisclosed purpose but may decide this issue from his acts and conduct and the surrounding facts and circumstances. Security Stove & Mfg. Co. v. Stevens, 222 Mo.App. 1029, 9 S.W.2d 808. It necessarily follows that there need not be any direct testimony on the question of intent as the jury may make its finding on this issue from a consideration of the facts and circumstances in evidence.'

Upon the record here, the court finds that it was the intention that the pews become a part of the church building. They were built for this church and installed therein to be a part of and complete the church. They were bolted to the floor in such manner that their removal damaged the floor of the building. The respondent is not charged with the secret and undisclosed intention of Pastor Fausett. From the surrounding facts and circumstances, the court finds that these pews were intended to become a permanent part of the building.

In Tyler v. White, 68 Mo.App. 607, the court held that a heating apparatus installed in a dwelling house became a permanent part of real estate and passed to the subsequent mortgagee. The court announces the rule as follows, L.c. 610--611:

"But as between vendor and vendee, heir and executor, or administrator and mortgagor and mortgagee, there is no such indulgence toward him who annexes personal property to the land; a much stricter rule applies, and the presumption is the contrary of that given to the tenant. For it will there be presumed that the owner of the land intended the improvement as an accessory to the inheritance and as a lasting benefit thereto. It will not be presumed that the owner of the fee intended the work as a mere temporary improvement, to be by him taken away in case he should sell the land, or to be removed in case the mortgage should foreclose.

"Under the old law, the principal test as to what was or was not a fixture, was said to be the nature of the physical attachment to the...