Straw v. Straw

• Decision Date: 03 December 1897
• Parties: STRAW v. STRAW.
• Court: Vermont Supreme Court

39 A. 1095

70 Vt. 240

STRAW

v. STRAW.

Supreme Court of Vermont. Lamoille.

Dec. 3, 1897.

Exceptions from Lamoille county court; Start, Judge.

Trover by A. R. Straw against John Straw. Heard on report of a referee. Judgment for plaintiff. Defendant excepted. Affirmed.

George M. Powers and L. C. Moody, for plaintiff.

George Wilkins, for defendant.

ROSS, C. J. The defendant controverts the plaintiff's right to recover for the water wheel and the main shafting connecting it with the starch-factory machinery. These were put in by Thomas A. Straw, who owned the equity of redemption of the premises. The plaintiff does not contend that, while thus situated, the water wheel and main shafting did not become fixtures, under the decisions of this court, and were covered by the mortgage then owned by W. H. H. Bingham. After the decease of Thomas A. Straw, his administrators did not intend to redeem the factory. Mr. Bingham thereupon sold his interest in the mortgage and mortgaged premises to the defendant. To effect the transfer of his interest in the mortgage and mortgaged premises, he conveyed by a quitclaim deed to the administrators on the estate of Thomas A. Straw. This conveyance merged the estate of the mortgagee in the administrators. Thus the entire estate and interest in the starch-factory premises became vested in the administrators. The plaintiff, defendant, and a brother and sister were creditors, and had claims allowed against the estate of Thomas A. Straw. When the administrators conveyed the starch-factory premises to the defendant, they reserved the water wheel and shafting put therein by Thomas A. Straw subsequently to the giving of the mortgage owned by Mr. Bingham. The plaintiff purchased of the defendant, his brother, and sister their claims against Thomas A. Straw's estate, and their interest in the water wheel and machinery reserved in the deed of the administrators to the defendant. The referee finds that the plaintiff owned the water wheel and shafting in controversy. The plaintiff was one of the administrators on Thomas A. Straw's estate, and in his and his co-administrator's deed of the starch-factory premises reserved it. Whether there was a conveyance by the co-administrator of this property to the plaintiff, the referee has not stated; but that fact must be inferred, because the referee finds that the plaintiff owned it. The defendant does not contend that, on the facts found by the referee, he has any title to the property in controversy. The referee also finds that, when the plaintiff demanded the water wheel and shafting, they were then in their place in the starch factory, and that the defendant had then been using them in that connection for more than two years after the reservation of them to the plaintiff and his co-administrator in their deed of the starch-factory premises to him. The defendant contends that by their location and use, when demanded, they were fixtures, and that they cannot be recovered for in an action of trover.

The plaintiff and the defendant are parties to the administrators' deed. By the reservation therein and the acceptance of the deed by the defendant, the parties treated the water wheel and shafting as existing separate and apart from the starch factory,...