State Sav. Bank v. Kercheval

• Decision Date: 31 October 1877
• Citation: 65 Mo. 682
• Parties: THE STATE SAVINGS BANK v. KERCHEVAL ET AL. APPELLANTS.
• Court: Missouri Supreme Court

65 Mo. 682

THE STATE SAVINGS BANK

v.KERCHEVAL ET AL. APPELLANTS.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Buchanan Circuit Court--HON. JOS. P. GRUBB, Judge.

This was a suit to enjoin defendants from removing a frame building. The petition stated that defendant Kercheval was the owner of certain lots, which he had conveyed to a trustee for plaintiff, together with all the fixtures, machinery and other articles on the lots, composing a complete flouring mill; that this conveyance was made to secure loans of money made by plaintiff to defendant, Kercheval, who had since become insolvent, leaving a large amount due plaintiff; that plaintiff had no means of collecting his debt other than this property, which was also heavily encumbered by tax liens and a prior deed of trust; that on said lots and attached to said mill there was a certain frame building, which defendants were about to tear down and remove from the lots, thus injuring the mill building and lessening the value of plaintiff's security; that defendant Allen had no right, title or interest in the lots or any of the appurtenances; that, in view of the financial condition of defendant Kercheval, and of the amount of indebtedness secured on the mill and lots and the value thereof, the damage to plaintiff would be irreparable, unless defendants were restrained from injuring the property. To this petition defendants filed separate answers.

Upon the trial it appeared that defendant Kercheval was the owner of the lots and mill, and had borrowed money and given deeds of trust on them, and that plaintiff was the holder of the notes secured by these deeds of trust. It also appeared that, after they were given, defendant Allen had erected on the lots the frame building in question, to be used, in connection with the mill, as an office; that, not having been paid for the labor and material put into it, he took a bill of sale of it from defendant Kercheval, by way of payment, and was proceeding, with Kercheval's consent, to remove the building on the day when the plaintiff was about to sell under his deeds of trust; that the mill was a brick building; that the frame was separated from it by a space about three feet wide, and was only connected with it by a wooden pavement laid between the outer doors of the two buildings; that the frame was built on blocks set on the surface of the ground; that it was a temporary affair, built with the intention of being removed; that it was used as an office only, and there was never any machinery of the mill in it. It also appeared that defendant Kercheval was insolvent, but there was no evidence as to the financial condition of defendant Allen. The court decreed a perpetual injunction, and defendants appealed.

E. O. Hill for appellants.

1. The petition shows upon its face that plaintiff had a perfect, complete and adequate remedy at law for all the injuries complained of. Burgess v. Kattleman, 41 Mo. 480; Hopkins v. Lovell, 47 Mo. 102; Sayre v. Tompkins, 23 Mo. 443; Echelkamp v. Schrader, 45 Mo. 505; James v. Dixon, 20 Mo. 79; State v. Parkville & G. R. R. R. Co., 32 Mo. 496. There is no averment in the bill that defendant, Allen, is insolvent, and not a word of evidence offered on the trial touching his inability to pay any and all judgments that might be rendered against him in the case.

2. It is not sufficient that the bill contains mere general averments of irreparable mischief. The facts constituting such mischief should be set forth. High on Injunctions, 1st Edition, page 340, sec. 461. There is not a fact set forth in the bill showing any damage whatever to plaintiff, to be irreparable. The only allegation in the bill is “that in view of the said financial condition of said Kercheval, and in view of the amount of indebtedness secured on said mill and lots, and the value thereof, the damage to plaintiff will be irreparable.”

B. Pike and H. K. White for respondent

1. Plaintiff's mortgage called for a complete flouring mill. The office used when the mortgage was given, was at the time of the suit used for machinery, and the frame building had taken its place, and was necessary to the mill. It was part of the realty, and plaintiff's mortgage attached to it, even though executed prior to the erection of the building. Rogers v. Crow, 40 Mo. 91; Hoskin v. Woodward,45 Pa. Stat. 42. Between vendor and vendee, and mortgagor and mortgagee, any annexation to the realty or appurtenance however slight, is sufficient. The fixture need not be attached so that detaching will disturb the soil or rend any part of the building. Walker v. Sherman, 20 Wend. 636.

2. The injunction was properly granted, independent of our statutory provisions. The injunction will be granted, even though an action for damages at law will lie when the remedy at law is not as practical and efficient to the ends of justice and its prompt administration as the remedy in equity. Clark v. R. R. Co., 44 Ind. 248; Watson v. Sutherland, 5 Wall. 74; Carpenter v. Grisham, 59 Mo. 251; Winslow v. Nayson, 113 Mass. 411.

3. The statute has, in a measure, relaxed the old rule, and injunctions may now issue when the relief consists in restraining the commission of an act which would produce injury to the plaintiff, and in all cases when an injury is threatened to real property, an injunction may issue when an adequate remedy cannot be afforded by an action for damages. The value of the frame building, even if recoverable from defendant, Allen, by suit at law, would be no adequate remedy for loss of time and business to a purchaser of the mortgaged property for want of an office in which to transact its business, and consequent depreciation to a bidder at plaintiff's sale. The injunction, therefore, afforded a more practical and efficient remedy for the prompt administration of justice. 2 Wag. Stat., pp. 1029 and 1032, secs. 4 and 24; Clark v. R. R. Co., supra.

HENRY, J.

The questions for consideration here are:

1st. Was the building which it is alleged the defendants were about to remove, personal property?

2nd. If not, would an action for damages have afforded an adequate remedy?

It must be admitted that the law in regard to fixtures is in a somewhat chaotic state. It is frequently difficult to determine, upon principle, whether an article of property is a fixture or not. There is a most embarrassing conflict in the adjudged ...