Taylor v. Collins
| Decision Date | 11 January 1881 |
| Citation | 8 N.W. 22,51 Wis. 123 |
| Parties | TAYLOR v. COLLINS AND OTHERS. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Fond du Lac county.
Shepard & Shepard, for respondent.
Geo. E. Sutherland, for appellants.
The complaint is for the strict foreclosure of a land contract, alleging, amongst other things, that since the sale the defendant Enos Collins had built and constructed on the premises a wooden building, made, and part of the time used, for a manufactory of spring beds and other articles, and that such building contains tools and articles of machinery, which are fixtures, belonging in and to said shops, and are a part of the realty, and that the defendant Collins threatens to remove said machinery from said building and premises, and prays for an injunction against such removal. The answer denies that said articles of machinery are fixtures, and alleges that they are personal property and the right to remove them as such.
This was the main issue tried and determined by the circuit court, and the only questions presented on this appeal are-- First, whether one Nightingale was a necessary party to the suit; second, whether certain evidence was admissible; third, whether, after a special verdict of a jury on certain questions of fact, the court had the right to set aside such verdict, and try and determine such questions without a jury; fourth, whether a proper case was made for an injunction against the defendant Collins, restraining him from removing said machinery; and, fifth, whether said articles of machinery were fixtures and a part of the realty. These questions will be disposed of in their order.
First. It is stated in the complaint that Nightingale had contracted with Collins for the purchase of a part of the premises, and the question as to his being a necessary party to the action was not raised either by demurrer or answer. The only question, therefore, now is whether the circuit court could make a full and final disposition of the case without his being a party. It is quite immaterial to the rights of plaintiff that Nightingale bought an interest in the premises of Collins. It could not affect his rights in any way. If he was a necessary party, in order that the rights of all persons claiming any interest in the premises subordinate to the original contract of sale between the plaintiff and Collins might be adjusted in this suit, then it is not apparent how such rights could be adjusted in this suit. The plaintiff is not interested in such adjustment, and the defendants have waived their right to have Nightingale made a party for such purpose by not asking it.
Second. As to the admission of improper evidence, this being a suit in equity, unless such evidence improperly affected the findings of the circuit court it will be regarded as immaterial. The questions asked the witness, whether the machinery in this case was attached to the realty, as it is ordinarily in other machine shops, is asking for the mere opinion of the witness, which could not affect the question whether such machinery was in fact attached to the realty, and would not be likely to affect the findings of fact. The testimony objected to, as to what was said between the agent of the plaintiff and the defendant Collins at the time the written contract was made, or a short time before, in respect to his building a shop upon the premises and placing in it the necessary machinery for a manufacturing establishment and business, was not admissible as a part of the contract, or to change the written contract, but it appears to have been admissible and proper as tending to show the intention of the defendant Collins in making the constructions in question permanent and a part of the realty, or otherwise. This will more clearly appear when the question as to whether this machinery were fixtures, or otherwise, is hereinafter considered.
Third. The setting aside the special verdict of the jury and the finding of the facts by the court were within the discretion of the court sitting as a court of equity, and not improper. To this effect is the decision of this court In the Matter of the Probate of the Will of Patrick Carroll, 7 N. W. REP. 434, 3 Iowa, 246.
Fourth. To make a proper case for an injunction, restraining the defendant Collins from removing the fixtures from the premises and thereby committing acts of waste thereon, it was not necessary to show that he was insolvent, or unable to respond in damages for such waste, or to pay any surplus. Although in nearly all respects this land contract and its foreclosure are analogous to an ordinary mortgage and its foreclosure, yet in one respect, at least, it is materially different. The plaintiff can obtain by his action nothing but a strict foreclosure and the removal of this cloud from his legal title. He is in pursuit of his money, or, in default, of the land itself, and nothing more, and this he is entitled to have intact, and the whole of it, and hence the solvency or insolvency of the defendant is quite immaterial.
But even in the foreclosure of an ordinary mortgage to obtain an injunction against waste, it is not necessary to show the insolvency of the mortgagor. Fairbank v. Cudworth, 33 Wis. 358;Northrop v. Trask, 39 Wis. 515. It is alleged in the complaint that the removal of the machinery would leave the premises of very little value and very greatly damaged, and the circuit court found these allegations true. The case of Kimball v. Darling, 32 Wis. 675, is most strongly in point and nearly parallel with this case in its facts, and this court held in that case an injunction against the removal of the machinery was not only proper but necessary relief. This disposes of the questions raised, except the last, which is treated by counsel on both sides as the vital question in the cause: Fifth. Were the articles of machinery which the defendant threatened and claims the right to remove, in fact and law fixtures? The learned counsel of the appellant claims that the rules by which it is to be determined whether certain machinery are fixtures are--“ First, actual physical annexation to...
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Hatton v. Kansas City, Clinton & Springfield Railway Company
...the annexation to make the property in question a permanent accession to the freehold. [Scobell v. Block, 31 N.Y.S. 975; Taylor v. Collins, 51 Wis. 123, 8 N.W. 22; Dudley v. Hurst, Miller & Co., 67 Md. 44, 8 A. And of these three unities the question of intention is said to be controlling. ......
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Standard Oil Co. v. La Crosse Super Auto Serv., Inc.
...and (3) an intention on the part of the person making the annexation to make a permanent accession to the freehold. Taylor v. Collins, 51 Wis. 123, 8 N. W. 22, 25;Walker v. Grand Rapids F.-M. Co., 70 Wis. 92, 35 N. W. 332;Homestead Land Co. v. Becker, 96 Wis. 206, 71 N. W. 117, 118;Thomsen ......
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Fuller-Warren Co. v. Harter
...criticised here since it was decided, but has been repeatedly approved as stating the true rule. Smith v. Waggoner, supra; Taylor v. Collins, 51 Wis. 123, 8 N. W. 22; Manufacturing Co. v. Rundle, supra; Land Co. v. Becker, 96 Wis. 206, 71 N. W. 117; Gunderson v. Swarthout, supra. The judici......
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Hatton v. Kansas City, C. & S. Ry. Co.
...to make the property in question a permanent accession to the freehold. Scobell v. Block, 82 Hun, 223, 31 N. Y. Supp. 975; Taylor v. Collins, 51 Wis. 123, 8 N. W. 22; Dudley v. Hurst, 67 Md. 44, 8 Atl. 901, 1 Am. St. Rep. 368. And of these three unities the question of intention is said to ......