Skinner v. Stewart Plumbing Co.
| Docket Number | 20194. |
| Decision Date | 08 September 1930 |
| Citation | 155 S.E. 97,42 Ga.App. 42 |
| Parties | SKINNER et al. v. STEWART PLUMBING CO. |
| Court | Georgia Court of Appeals |
Rehearing Denied Sept. 29, 1930.
Syllabus by the Court.
Fixtures annexed to realty passed with conveyance of land, unless expressly reserved; fixtures pass to bona fide purchaser of realty, notwithstanding agreement between owner of land and vendor of fixtures that they should remain personalty.
"When land is conveyed, whatever fixtures are annexed to the realty at the time of the conveyance pass with the estate to the vendee, unless there be some express provision to the contrary; and fixtures pass to a bona fide purchaser of the real estate, notwithstanding an agreement between the owner of the land and the vendor of the fixtures that they should remain personal property." Cunningham v Cureton, 96 Ga. 489 (4), 23 S.E. 420, 421.
Record of title retention contract for bathroom fixtures installed in house held not notice to subsequent purchaser of realty (Civ. Code 1910, § § 3259, 3319, 4891(6), 4892(8) (9).
One who sells bath fixtures, as a bathtub, a lavatory, and the like retaining the title to secure the purchase money, but consenting to the installation of the fixtures in the house of the purchaser in such manner that they would have become a part of the real estate except for the "title-retention contract," cannot charge a subsequent purchaser of the real estate with notice of such conditional sale of the fixtures merely by having this instrument filed and recorded as a chattel mortgage.
Bona fide purchaser of realty without notice of recorded contract reserving title to bathroom fixtures acquired title to fixtures (Civ. Code 1910, § § 3259, 3319, 4530, 4537).
Such a record will not operate as constructive notice of an incumbrance upon the real estate, and one who buys the real estate in good faith and without actual knowledge of the private agreement, and believing that the fixtures are "a part of the real estate, as they appear to be," acquires the title to such fixtures unincumbered with the conditional sale.
Error from Superior Court, Fulton County; E. E. Pomeroy, Judge.
Suit by Stewart Plumbing Company against S. M. Skinner and others. Judgment for plaintiff was affirmed by the appellate division of the municipal court and the superior court, and defendants bring error.
Reversed.
Ralph Williams, and Jones, Evins, Powers & Jones, all of Atlanta for plaintiffs in error.
Levi O'Steen, of Atlanta, for defendant in error.
Stewart Plumbing Company sold to A. A. Mathis a bathtub, a lavatory and a water-closet combination, with fittings--in other words, a set of bathroom fixtures--with the understanding that they were to be used by the purchaser in a residence owned by him in Fulton county, but that they were not to be removed without the consent of the vendor, and that the title was to remain in the vendor until the full payment of the purchase money. The contract was in writing and was duly executed and attested, and was recorder in Fulton county as a chattel mortgage. After the execution and record of this instrument and the installation of the fixtures, the title to the dwelling house passed by mesne conveyances from Mathis to Susie M. and Henrietta T. Skinner, who purchased the property in good faith, without actual notice of such agreement, and also without constructive notice unless this resulted from the record of the agreement "as a chattel mortgage only," since there was "nothing of record on the land records of Fulton county to indicate the existence of such contract." Mathis failed to pay for the fixtures, and Stewart Plumbing Company brought in the municipal court of Atlanta a trover suit against Susie M. and Henrietta T. Skinner for their recovery. Upon an agreed statement of facts there was a judgment for the plaintiff, which judgment the appellate division of the municipal court and the superior court, respectively, affirmed; and the defendants have brought the case to this court for review. The agreed statement contained the following stipulations in addition to the facts set out above: "While the above described fixtures were installed in the house located on said property in such a manner that but for the said title-retention contract they would have become a part of the real estate, they did not by such installation lose their identity, but, on the contrary, are detachable fixtures, which could be removed [without?] materially injuring the value of the real estate as it would have stood had such attachment never been made, and without materially injuring their own value." The defendants purchased the real estate "believing that said fixtures were incidents and appurtenances to said real estate and a part thereof, as they appeared to be, and that they would pass with a conveyance of the real estate."
In our opinion the judgment is erroneous and should be reversed. In Cunningham v. Cureton, 96 Ga. 489(4), 492, 23 S.E. 420, 421, the Supreme Court held: "Where land is conveyed, whatever fixtures are annexed to the realty at the time of the conveyance pass with the estate to the vendee, unless there be some express provision to the contrary; and fixtures pass to a bona fide purchaser of the real estate, notwithstanding an agreement between the owner of the land and the vendor of the fixtures that they should remain personal property." The present controversy is between the vendor of the fixtures and subsequent purchasers of the real estate to which they were attached, and the decisions which merely hold that an agreement to treat such fixtures as personalty is valid and enforceable between the parties are not in point. Compare Power v. Garrison, 141 Ga. 429, 81 S.E. 225; Columbus Heating, etc., Co. v. Burt, 166 Ga. 158, 142 S.E. 551; Wofford Oil Co. v. Weems-Fuller Co., 166 Ga. 173, 175(3), 142 S.E. 887. The question here is mainly one of notice, and, more specifically, is whether, under the particular facts stated, the record of the retention of title contract as a chattel mortgage operated as constructive notice of the agreement. If so, the judgment was right; otherwise, not. Upon this question there is a hopeless conflict of authority, but, in the opinion of this court, it should be answered in the negative. The seller by a record which in law is applicable only to personalty is seeking to burden that which by his consent apparently became realty, and justice and reason would both argue that, as to purchasers acting in good faith and without actual notice, the property should be treated as what it appears to be, unless there is some recorded incumbrance upon the land such as would amount to constructive notice.
It so happens in the instant case that Mathis, the vendee of the fixtures, resided in Fulton county, in which the land was located, and therefore the record of the conditional sale was in the same office where papers affecting the title to the land would properly have been recorded; but, had he lived in some other county in this state, the contract should have been recorded in that county, and, perhaps, also in the county where the property was situated, if in a different county; whereas mortgages or liens affecting the title to the real estate should have been recorded only in the county of Fulton, where the real estate was located. Civil Code (1910) § § 3259, 3319; Reynolds Banking Co. v. Peebles, 142 Ga. 615, 616, 83 S.E. 229; Atkinson v. Brunswick-Balke-Collender Co., 144 Ga. 694, 87 S.E. 891; Grady Trading Co. v. Ireland, 29 Ga.App. 172, 114 S.E. 86; Farmer v. Phillips, 12 Ga.App. 732(2), 78 S.E. 353. It would be unreasonable to require that a purchaser should examine the records in the various counties in which the several prior owners of real estate may have resided, in order to determine whether any such owner had placed an incumbrance upon some fixture located upon the property in such manner as to become apparently a part of the real estate. The statutes of this state do not appear to require that mortgages on personalty shall be recorded in a different book from mortgages on realty, Civil Code of 1910, § § 4891(6), 4892(8, 9), but this court will take judicial cognizance of the custom of the clerks to keep separate records of such mortgages, and the stipulation in this case, to the effect that there was "nothing of record on the land records of Fulton county," indicates that the custom to which we have just referred is of force in the office of the clerk of the superior court of Fulton county. However, the distinction as to the county or counties in which mortgages on personalty and those on realty shall be recorded, respectively, is of far more...
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