Union Bank & Trust Co. v. Fred W. Wolf Co.

• Citation: 86 S.W. 310,114 Tenn. 255
• Parties: UNION BANK & TRUST CO. et al. v. FRED W. WOLF CO. et al.
• Decision Date: 11 February 1905
• Court: Supreme Court of Tennessee

86 S.W. 310

114 Tenn. 255

UNION BANK & TRUST CO. et al. v. FRED W. WOLF CO. et al.

Supreme Court of Tennessee.

February 11, 1905

Appeal from Chancery Court, Davidson County; John Allison Chancellor.

Suit by the Union Bank & Trust Company and others against the Fred W Wolf Company and others. From a decree in favor of complainants, defendant Wolf Company appeals. Affirmed.

W. H Williamson, for appellant.

Norman Tarrell, Jr., for appellees.

NEILL J. (after stating the facts).

We are referred by counsel for the defendants to McDavid v Wood, 5 Heisk. 95, as authority for the proposition that the intention of the parties in affixing things to land will generally determine whether, on being so attached, they become fixtures, and so a part of the realty. In that case the rule contended for is enunciated in the following language: "Look first to the intention with which the thing, which may be a fixture by annexing it to the freehold, was annexed, and if it is found that it was the intention of the owner of the freehold to make the erection for the permanent use and advantage of the land, and to remain permanently attached to the soil, such erection is to be regarded as part of the realty. But if the erection is not made with the view of a permanent addition to the land, but for purposes of trade or manufacture, the erection will be regarded as a chattel, unless a contrary intention is made to appear." In that case the contest was between the executor and heir, and the property involved a steam sawmill, with its machinery and appendages. The court held that this property was to be treated as personalty, although fixed to the land, because it appeared in the evidence that the mill was erected by four partners on the land of one, under a lease of the land, with the agreement that it was to be removed whenever they thought proper; that it was erected for manufacturing purposes, and not with the view of giving additional value to the land; that the owner of the land did not agree to its erection as a permanent improvement, and did not at any time regard it in any other light than as personal property belonging to the four partners. To the same effect, Snowden v. Memphis Park Association, 7 Lea, 225, 229; Saunders v. Stallings, 5 Heisk. 65, 70-73; Memphis Gaslight Co. v. The State, 6 Cold. 310, 98 Am. Dec. 452. The relations of the parties have much to do with the matter also; likewise the use to which the property is put. The general rule is that everything attached to the freehold becomes land. Childress v. Wright, 2 Cold. 350. This rule is relaxed, as between landlord and tenant, in favor of the latter (Saunders v. Stallings, supra), and as to machinery introduced for manufacturing purposes (Memphis, etc., Co. v. The State, supra), also between the tenant for life and the remainderman (Cannon v. Hare, 1 Tenn. Ch. 22); but is administered strictly between the owner of the land and a trespasser making erections thereon ( Malone v. The State, 11 Lea, 701; Childress v. Wright, supra), and, between vendor and vendee, in favor of the latter. Degraffenreid v. Scruggs, 4 Humph. 451, 40 Am. Dec. 658.

In the case last cited, it appeared that one Shelton was the owner of a cotton farm, on which he erected a cotton gin for the purpose of ginning cotton produced thereon; that the house was built upon blocks, and the gin fastened to the house by nails and braces. Shelton thereafter conveyed the land by deed in trust to Nelson to secure the payment of certain debts. Subsequent to the making of this deed in trust, Shelton executed a deed in trust to one Scruggs, for the benefit of other creditors, on the cotton gin alone. Thereafter Nelson enforced his trust deed by a sale of the property therein conveyed, the land, and Degraffenreid became the purchaser. Scruggs, the trustee under the second deed in trust, demanded the cotton gin from Degraffenreid, but the latter refused to surrender it. Thereupon Scruggs brought suit. The court below charged the jury that, if the gin could be severed and removed without serious injury to the land or gin, it would not pass under the deed, and they must find for the plaintiff. The jury so found, and upon appeal to this court, after stating the strict rule of the common law as above announced, and its relaxation in favor of tenants, and in relation to fixtures erected for purposes of trade, and its rigid maintenance as between executor and heir, and between vendor and vendee, the court proceeded to decide the controversy in favor of the vendee, in the following language:

"In this case the gin was erected in the ginhouse, and fastened to the house by nails and braces. It was, therefore, permanently attached and fixed to the freehold, and this is the true and certain criterion to determine whether it passed by the deed with the freehold. *** Any attempt to carry out the principles stated by his honor to the jury would be attended with endless difficulty and uncertainty. If fixtures attached to the freehold may be removed, provided they can be severed without any injury to the land, scarcely a case could occur in which they would pass by the deed."

As said by Cooper, J., in Cannon v. Hare, supra: "The finest framed or other buildings *** are constructed upon foundation walls, and any building can be taken down to the top of the foundation walls, and to the bottom rock of the foundation walls, without injury to the soil. Accordingly, the tendency of modern decisions is to make the rights of the parties to fixtures and buildings depend, not on the manner in which they are attached to the freehold, but upon the character of the parties, the intention in erecting the improvements, and the uses to which they are put.

"Loose machinery in a manufacturing establishment will, as we shall see presently, go to the heir as against the executor, while the same machinery firmly attached to the building, and even the building itself, belong to the tenant for years, as between him and the landlord. So substantial houses built upon stone foundations with brick chimneys, and indubitably attached to the soil, will, if erected principally for purposes of trade, belong to the outgoing tenant for years; while the same buildings, or even buildings resting upon pillars or trestles, and not let into the soil, if erected and used as dwellings, or for the more convenient enjoyment of the land, or for the purpose of obtaining an income by renting, would go, with the freehold, to the landlord, even as against a tenant for years."

So in Cubbins v. Ayres, 4 Lea, 329, it was held, in favor of a tenant as against his landlord, that a barroom counter and shelving, and an office counter, and an iron safe erected on the premises of the landlord by the tenant, should be treated as personal property, under the theory of trade fixtures, although the counter was nailed to the wall and the floor, and the shelving was behind the counter, and was fastened by nails also to the walls and the floor, and the iron safe was well set into an aperture in the wall larger than the safe itself, and surrounded with a structure of wood, fitted and securely fastened to the sides and top of the wall around the opening, and inclosed therein. On the other hand, in Johnson v. Willinghby, 3 Tenn. Cas. 338, it was held that a dwelling house, kitchen, stable, corncrib, and other outhouses erected upon land by a tenant, without any contract with the landlord in respect thereto, became the property of the owner of the land at the expiration of the tenancy, on the ground that the erection was made with a view of permanent advantage to the land, and not for the purpose of trade or manufacture. And in Johnson v. Patterson, 13 Lea, 626, machinery in a cotton factory was held to be realty, under the following circumstances: When President Andrew Johnson died, he had a debt on one Prather,...