United Benefit Life Ins. Co. v. Norman Lumber Co.

• Decision Date: 20 April 1971
• Docket Number: No. 42588,42588
• Parties: UNITED BENEFIT LIFE INSURANCE CO., a corporation, Plaintiff in Error, v. NORMAN LUMBER COMPANY, a corporation, and CAP Interiors, Inc., a corporation, Defendants in Error.
• Court: Oklahoma Supreme Court

Page 527

484 P.2d 527

UNITED BENEFIT LIFE INSURANCE CO., a corporation, Plaintiff in Error, v. NORMAN LUMBER COMPANY, a corporation, and CAP Interiors, Inc., a corporation, Defendants in Error.

No. 42588.

Supreme Court of Oklahoma.

April 20, 1971.

Syllabus by the Court

1. In determining whether chattels become fixtures, actual or constructive annexation to realty, or something appurtenant thereto, appropriateness to use or purpose of that part of realty with which it is connected, and intention of party making annexation to make a permanent accession to freehold, must be considered.

2. A materialman, who has a lien or liens upon real estate improvements for material sold and furnished the owner is ordinarily not required to apply payments made it by such owner to any specific account or debt owing by the owner or lien therefor, unless so directed by the debtor, but may apply the payments as it sees fit and such application will not be disturbed where made in good faith and without notice of any claim of superior right or equities of third parties in the funds so paid.

3. In a case of purely equitable cognizance, Supreme Court will on appeal review and weigh the evidence, but will not reverse the judgment unless it is clearly against weight of the evidence.

Appeal from the District Court of Cleveland County; Elvin J. Brown, Judge.

Action in foreclosure of materialmens lien as against the mortgage of homes wherein carpet and carpets pads were installed by means of glue and tacks, and supplier of other materials filed cross petition for foreclosure of its materialmens' liens. From a judgment in favor of suppliers of materials, mortgagee appeals. Affirmed.

William G. Paul, John D. Hastie, Crowe, Boxley, Dunlevy, Thweatt, Swinford &amp Johnson, Oklahoma City, for plaintiff in error.

Fielding D. Haas, T. R. Benedum, and Ben Benedum, Norman, for defendant in error, Norman Lumber Co.

W. Samuel Dykeman, Oklahoma City, for defendant in error, CAP Interiors Inc.

HODGES, Justice.

This appeal involves a materialmens lien foreclosure case tried without a jury. It was held that defendant CAP Interiors had a valid lien upon the carpet and carpet pads in the six homes foreclosed; that the defendant Norman Lumber Company had a valid lien upon materials furnished; and that plaintiff in error, United Benefit Life Insurance Co.'s mortgage was inferior to said liens. Judgment affirmed.

The first proposition is whether the carpet and carpet pad furnished by CAP were lienable items. United maintains that these items are personalty not meant to be permanently affixed to the realty and therefore are not lienable items. Further, United maintains that under 42 O.S.1961, Section 141, these items are furnishings and not covered by the language of such statute. The parties stipulated as to the facts of the carpeting and pads as follows in the material parts:

'That all six of the houses were new and the carpets were installed upon completion of initial construction of the homes and prior to first occupancy; that the ground floors of all houses over which the carpets were laid are concrete and the second story floors over which carpets were laid are rough unfinished plywood; that the carpets and carpet pads are cut to fit the size of the room; that on the concrete floors a product called 'Roberts pad cement', which is a long lasting glue, is placed on the concrete between the carpet pad around the edges of the carpet pad and at various intervals across the room of approximately every 4 1/2 on the rough unfinished plywood, the carpet pad is stapled with 3/8 staples around the edges of the carpet pad and across the pad approximately every 4 1/2 ; that after the pad is down, tack strips, which is a piece of wood 1/4 thick and 1 1/8 wide with 1/2 tacks sticking up 5/8 approximately every 1/4 from the top of the board, are nailed around the edges of the room to the floor with 3/4 nails placed approximately every 4 to 5 ; that the carpet is attached to the tack strips by means of said 1/2 tacks and then stretched to the other sides of the room with power stretchers; that the carpet pad, once installed, cannot be removed without destruction of the same as a usable product, but the carpeting itself may be removed without damage to the carpeting.'

The test is whether the article or item is permanently affixed to the realty or as set out in 60 O.S.1961, Section 7, '* * * or permanently attached to what is thus permanent, as by means of cement, plaster, nails, bolts or screws.' United cites the case of Hartford Fire Insurance Co. v. Balch, Okl., 350 P.2d 514 (1960), wherein it was held that a carpet was not permanently affixed to the realty and was personal property. This case involved an insurance question. The court in the Hartford case found that the carpet was loosely tacked and glued in place; that the mortgage on the premises did not include the carpet; that the glue was meant to keep it from slipping and it was not the intention of the owners that the carpet was to remain as part of the realty. The courts said, 'it appears to us from the above evidence that the small amount of glue used around the edges of the pad, and the small tacks on the edges of the carpet were for the purpose of holding it in place and not for fixing it permanently to the floor.' In the present case, if the carpet was removed the ground floor would then be a concrete slab, the second floor an unfinished rough plywood. The glue used to hold down the carpet was a long lasting glue and the tacks were used with great frequency. The carpet was not excepted from the mortgage. The carpet pad would be destroyed if removed. From the circumstances in this case it is apparent that the owner intended that the carpet stay affixed to the realty and as such is a lienable item as the carpet and pads are an improvement upon the property in...