Thomas v. Davis

• Decision Date: 31 October 1882
• Parties: THOMAS v. DAVIS, Appellant.
• Court: Missouri Supreme Court

76 Mo. 72

THOMAS

v.DAVIS, Appellant.

Supreme Court of Missouri.

October Term, 1882.

Appeal from Jasper Circuit Court.--HON. JOSEPH CRAVENS, Judge.

AFFIRMED.

L. P. Cunningham and C. A. Winslow for appellant.

The evidence of custom should have been received. It was the law of the contract. Soutier v. Kellerman, 18 Mo. 509; Southwestern F. & C. P. Co. v. Stanard, 44 Mo. 71; Kimball v. Brawner, 47 Mo. 398. It is generally admissible in these cases. Ewell on Fix., 63, 109, 307. The engine and boiler were personal property and as such passed to defendant. Hunt v. Mullanphy, 1 Mo. 508; Burk v. Baxter, 3 Mo. 207; Lacey v. Giboney, 36 Mo. 320; Rogers v. Crow, 40 Mo. 91; Graves v. Pierce, 53 Mo. 429; Collins v. Mott, 45 Mo. 100.

E. T. Montague for respondent.

The engine and boiler were part of the realty and passed by the first deed of trust. McRea v. National B'k, 66 N. Y. 489.

HENRY, J.

This suit is for the recovery of a steam engine and accompanying machinery and for damages. Plaintiff had judgment, from which defendant appeals.

Plaintiff claims the property under a deed of trust executed by one Corn, conveying to him lot 19 and other lots in the city of Joplin, to secure a promissory note executed by Corn. On said lot was a building erected by Corn in which the machinery in question was placed by him for the purpose of smelting lead. This deed was executed June 4th, 1874.

On the 11th day of June, 1875, Corn executed a second deed of trust, to secure certain other creditors, conveying to Ed. T. Allen said lot 19, and other lots conveyed by the prior deed, and also other real estate not mentioned in the first deed; said real estate was in the latter deed conveyed, “together with all privileges, including my residence, furnaces, engines, boilers and machinery situated upon the property described, or any part thereof.” Defendant purchased the property conveyed by said second deed at a sale thereof by said trustee on the 26th day of May, 1876, and removed the machinery in controversy from the building. The testimony as to the manner in which the machinery was annexed to the building, is as follows:

James S. Zane testified: That defendant asked him if he knew a man who would move the engine and boiler and machinery out of Corn's smelter in Joplin, and witness sent him Mr. Bentley for that purpose; that Bentley brought the machinery to Thurman and put it in witness' care; that the smelting building was built in 1872; the boiler rested on an iron post, and the front part sat on that, the back part rested on an iron post, and that post sat on the stone foundation; the boiler rested on the iron posts and the posts on the stone work; the brick-work was built up the sides of the boiler for holding the heat; the foundation was stone and brick-work half way up the boiler; the engine set on cross-timbers; the pipes leading from the eyes ran into the back part of the jam; the fan rested on timbers; the frame-work is just timbers laid down; the pipes were fitted to the jam, tight. The expense of taking the machinery back and setting it up would be $250. The things removed by defendant were the boiler and engine and apparatus connected therewith. The boiler was a portable boiler, and had been used in some other place or places before being used in the smelting furnace.

M. M. James testified: At the date of the deed of trust there was a large frame building on the lots, erected in 1872, which was erected, and the machinery placed in it, for the purpose of smelting lead mineral into pig lead. There was studding, which supported the roof; the building was built in a substantial manner, was painted, and had in it a boiler, engine, pump, fan, water-tank, pulleys, air drums and three eyes; there was a slag-eye; one was a scotch hearth, one a basin, and the other a water-back; the eye consisted of a jam or basin; there was a brick and cast-iron basin and a cast-iron hearth; the hearth and basin were in one piece; the jam is all one piece; the three stacks were all connected and rested on a stone foundation of solid masonry; the thickness of the base of the stacks was from eight to ten feet; it was eight or ten feet from the base of the stack; two of the stacks were brick to the roof and then sheet-iron. The engine was set down on the left hand side of the boiler upon sills let in the ground; there were two sills under ground and two crossing them, and the upper sills bolted to the lower. The foundation of the boiler was of stone let into the ground; half way up the side of the engine a belt ran to a pulley on a line of shafting, to a pulley or head firmly attached to the upright studding and cross beams; from that line of shafting there was a pulley running down to run the fan-blower. There was a pump to furnish water for the boiler and to wash mineral. The stone-work, the brick-work, the building and the stacks were left. The expense of hauling the machinery back, after it was seized in this suit, was fifty odd dollars. The building was built by S. B. Corn, permanent in character, and, with the machinery placed in it, was intended and adapted to the purposes of a smelting furnace.

If the articles sued for were fixtures, defendant acquired no title by his purchase, but they passed by the deed to plaintiff. If not so attached to the freehold that they became part of the realty, defendant acquired the title to them by his purchase, and plaintiff had no right to recover.

It is difficult to define the term “fixtures,” and there is inextricable confusion, both in the text books and adjudged cases, as to what constitutes such an annexation of chattels to the realty, as to make them part, and pass by a conveyance, of the realty. An attempt to reconcile the authorities on the subject would be futile, and to review them would be an endless task. As was well observed by Kent, J., in Strickland v. Parker, 54 Me. 265: “It is not to be disguised that there is almost bewildering difference and uncertainty in the various authorities, English and American, on this subject of fixtures, and on the question of what passes by a transfer of the realty. One thing is quite clear in the midst of the darkness; and that is, that no general rule, applicable to all cases, and to all relations of the parties, can be extracted from the authorities.”

As between mortgageor and mortgagee, it is well settled that the same rule applies which exists with respect to...