Thomson v. Smith
| Decision Date | 03 October 1900 |
| Citation | 83 N.W. 789,111 Iowa 718 |
| Parties | M. L. THOMSON, Appellant, v. J. B. SMITH, Defendant. T. J. PEARSON & BROTHER, Intervener |
| Court | Iowa Supreme Court |
Appeal from Madison District Court.--HON. A. W. WILKINSON, Judge.
A decree was entered foreclosing a mechanic's lien in favor of the Frost Manufacturing Company, and also one in favor of M. L. Thomson, on the sixteenth day of October, 1896. The lot, with appurtenances, was sold thereunder to the plaintiff June 17, 1897, and a sheriff's deed executed to him a year later. Because of defendant's threat to remove certain machinery from the premises, he was enjoined in this action from so doing. T. J. Pearson & Bro. intervened therein, alleging the sale of the wagon scales situated on the lot to the defendant, on the condition that the title was not to pass until the purchase price was entirely paid, and that eighty dollars was still due; and judgment was asked for the value thereof. The plaintiff answered that he purchased without notice, and acquired title to the scales under the sheriff's deed. Judgment, was entered as prayed by intervener, and the case comes here on an appeal of the plaintiff, allowed by the trial judge.
Reversed.
Steele & Robbins and Cummins, Hewitt & Wright for appellant.
Sam C Smith for appellees.
OPINION
The plaintiff, as purchaser at the sheriff's sale, had no notice of the intervener's claim to the wagon scales until after he had taken possession of the premises under the sheriff's deed. He then acquired precisely the same right to the fixtures under the deed as though he had bought directly from the defendant, and, conceding the sale of the scales by intervener to defendant to have been conditioned as contended, this would not affect the title of a third party buying in good faith without notice. Stillman v Flenniken, 58 Iowa 450; Bringholff v. Munzenmaier, 20 Iowa 513; 13 Am. & Eng. Law 628. Under our statute, the intervener, in the absence of notice to the purchaser, would have been entitled to no protection, had the scales been sold as personal property. Section 2906, Code. If they became attached to the realty, and a part of it, a sale of the land under like conditions would as certainly carry title thereto. The vendor, having put it in the power of the vendee to attach them as a fixture to the land, and as such to sell to innocent purchasers, is not in a situation to complain when this was done. Wickes v. Hill, 115 Mich. 333 (73 N.W. 375. See Ice, Light & Water Co. v. Lone Star Engine & Boiler Works, 15 Tex. Civ. App. 694 (41 S.W. 835); Fifield v. Bank, 148 Ill. Sup. 163, 39 Am. St. Rep. 166, note (s. c. 35 N.E. 802); Muir v. Jones, 23 Ore. 332 (19 L. R. A. 441, 31 P. 646), note (s. c. 31 P. 646).
II. But were these wagon scales fixtures at the time of the sale? The building on the same lot was equipped with machinery for, and used as, a feed mill. The scales rested on a foundation wall of stone and mortar, within which the platform hung. The earth was removed somewhat below the surface, leaving a pit within the walls about twenty inches deep. The only testimony indicating the manner of attachment to this wall is that of defendant, who said: As we understand this, the platform of the scales, on which wagons are drawn, was hung by stirrups attached to its frame, in castings resting on plank laid on the foundation. From beneath this platform the supporting rods extended through the wall under the building through its floor to the beam on the inside, where the weight was ascertained. The record fails to disclose whether any part was fastened in any way, save as indicated, to the wall or building. But it may be assumed that, as large amounts of grain were weighed, the fastenings were sufficient to hold the scales in their proper place. It should also be added that up to October, 1896, the defendant got along with small scales in the mill; and at that time he began dealing in grain for shipment, and put in the scales in controversy mainly for that purpose. The grain was weighed thereon, and then hauled to the cars; but he made use of his office in the mill in carrying on this business, and weighed thereon at least one-fourth of the grain to be ground in the mill. In Woolen Mill Co. v. Hawley, 44 Iowa 57, the court recognized the united application of the following requisites to be the true criterion in testing whether an article is a fixture: (1) Actual annexation to the realty or something appurtenant thereto; (2) application to the use or purpose to which that part of the realty with which it is connected is appropriated; (3) the intention of the party making the annexation to make a permanent accession to the freehold. The intention was treated in that case as a matter of paramount importance, and this seems to be the modern rule, but the first and second requisites were by no means dispensed with. Annexation is the sine qua non of an article, in order that it be a fixture. But it has long been recognized, as in the above case, that a physical attachment to the realty is not always essential. Society v. Fleming, 11 Iowa 533. McGorrisk v. Dwyer, 78 Iowa 279, 43 N.W. 215; Shepard v. Blossom, 66 Minn. 421 (69 N.W. 221, 61 Am. St. Rep. 431); Washburn Real Property, 14; Feeder v. Van Winkle, 53 N.J.Eq. 370 (33 A. 399, 51 Am. St. Rep. 628; 13 Am. & Eng. Enc. Law, 605). Thus, in the early case of Walker v. Sherman, 20 Wend. 636, Cowan, J., remarked that: And in Wolford v. Baxter, 33 Minn. 12 (21 N.W. 744), the court, through Mitchell, J., said ...
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