Tibbetts v. Horne

• Decision Date: 31 December 1889
• Citation: 23 A. 145,65 N.H. 242
• Parties: TIBBETTS v. HORNE.
• Court: New Hampshire Supreme Court

23 A. 145

65 N.H. 242

TIBBETTS

v. HORNE.

Supreme Court of New Hampshire. Strafford.

Dec. Term, 1889.

Suit for injunction against the removal from a mill of an engine and other machinery which defendant had sold to Waterhouse & Frost, the mill-owners, and on which they had given defendant a chattel mortgage for the purchase money, and on which they had, after affixing it to the mill, given plaintiff a real-estate mortgage covering the land and mill as well as the machinery, plaintiff at the time having no knowledge of the chattel mortgage.

W. S. Pierce, for plaintiff.

H. V. Moore and J. A. Edgerly, for defendant.

DOE, C. J. "There is no principle of public policy to be subserved by fostering the claim of one man to the enjoyment and exercise of a right and interest in and over the real estate of another, at variance with the record title and apparent ownership. But, on the other hand, the policy of the law of this state is that the public records * * * should show the true state of the titles. * * * Whatever may be the rights or the nature of the interest in respect to such property [buildings and other structures placed by A. on land of B.] as between the original parties to the contract, * * * it seems to be well settled that a building, erected as the one in question was, could become a fixture, and a part of the freehold, so as to pass by the deed of the owner of the land to a bona fide purchaser without notice. This doctrine has been fully settled in Connecticut. Prince v. Case, 10 Conn. 375. To hold a different doctrine would always leave the purchaser in doubt as to the true state of the title to the property which he was purchasing, or the nature and extent, of the claims which third persons might have upon it. The * * * records would give him no light upon the subject. The principal value of the property might be in the buildings, and the purchase made solely with reference to them, and yet, after the bargain was completed, and the consideration paid, he might find that a third party owned the buildings." Powers v. Dennison, 30 Vt. 752, 756,757. "The defendant Root must have understood, when he sold the property to Shants & Co., that they intended to put the property to use in advance of the payment of the price; and from the kind and nature of the property he must have expected that in its use it must necessarily be annexed to the realty substantially in the manner in which it was, and thereby become apparently a parcel of the realty. What he knew, or had reason to suppose and did suppose, was to be done with the property, he must be taken to have consented to, as he did not object. Root, therefore, having, by implication at least, if not expressly, consented that the property might be incorporated with the realty of Shants & Co. in the manner it was, and they thereby become clothed with the apparent title as incident to their record title to the real estate, whereby the mortgagee was misled and induced to part with his money on the credit of the property, the equity of the mortgagee is paramount to that of the conditional vendor." Davenport v. Shants, 43 Vt. 546. "The policy of our law is that titles to real estate shall appear upon record, so that all may in this way be informed where the legal estate is. But were this new mode of conveyance to prevail, incumbrances might frequently be found to exist against which no vigilance could guard, no diligence protect. Our records would be fallacious guides, and when we had gained all the information they could give we should remain in doubt as to the title. It is much better to leave those who had ventured to rely upon the word or honor of another to resort to that word or honor for their redress than to suffer a person who had resorted to the official register to be defeated by secret claims of this kind. The law cannot prefer the claims of those who take no care of themselves to those who have faithfully used all legal diligence. If a loss is to be sustained, it is more reasonable that be who has neglected the means the law put into his power should suffer, rather than he who has used those means." Prince v. Case, 10 Conn. 375, 381. In Ford v. Cobb, 20 N. Y. 344,350, 351, the court says: "The recovery [in Mott v. Palmer, 1 N. Y. 564] could be sustained only on the assumption that fences were prima facie parcel of the freehold, but might legally become personal property by force of such an agreement as was proved in the case. * * * It is conceded that there must necessarily be a limitation to this doctrine, which will exclude from its influence cases where the subject or mode of annexation is such that the attributes of personal property cannot be predicated of the thing in controversy. Thus, a house or other building, which, from its size, or the materials of which it was constructed, or the manner in which it was fixed to the land, could not be removed without practically destroying it, would not, I conceive, become a mere chattel by means of any agreement which could be made concerning it. So of the separate materials of a building, and things fixed into the wall so as to be essential to its support; it is impossible that they should by any arrangement between the owners become chattels. * * * The question in the present case therefore is whether the method in which these salt-kettles were affixed to the freehold was such that they can still be claimed as chattels, upon the principle of" Mott v. Palmer, supra, and Godard v. Gould, 14 Barb. 662, "or whether they are to be considered as real property within" Fryatt v. Sullivan Co., 5 Hill, 116. "It is said that the execution * * * of a chattel mortgage upon it [boilers, engine, shafting, and...