Walsh v. Sichler
| Citation | 20 Mo.App. 374 |
| Parties | MICHAEL WALSH, Respondent, v. PHILIP SICHLER, Appellant. |
| Decision Date | 25 January 1886 |
| Court | Court of Appeals of Kansas |
APPEAL from Moberly Common Pleas Court, HON. G. BURCKHARTT, Judge.
Reversed.
Statement of case by the court.
This is an action of conversion. The petition is as follows:
" Plaintiff for his cause of action against defendant complains and alleges: That on the ____ day of _____, 1883 he rented of defendant a certain building, situated on lots number twenty-three and twenty-four, in block number thirteen, in the original town of Moberly, Missouri, and occupied the same as a cigar store. That afterwards, to-wit On the ____ day of ______, 1883, he caused to be placed in the said building, at his own expense, shelving and counters and other material with the understanding that said shelving and counters, etc., were to remain the property of this plaintiff, and that he could remove the same when he ceased to occupy said building as aforesaid, and the said property was put in said building for the purpose of carrying on plaintiff's business.
That afterward, viz.: on the sixteenth day of August, 1883, plaintiff sold to W. J. Hollis and J. L. Vroom said parts of lots numbers twenty-three and twenty-four, in block number thirteen, together with all the rights, privileges, immunities, and appurtenances thereto belonging, or in any way appertaining, includingt he building aforesaid, and conveyed the same by his general warranty deed of that date, thereby wrongfully converting to his own use and benefit, plaintiff's said property, and thereby damaging plaintiff in the sum of one hundred dollars.
Wherefore, plaintiff asks judgment against defendant for the sum of one hundred dollars and for costs."
The answer tendered the general issue. The trial was had before the court without the intervention of a jury.
The facts, as disclosed at the trial, are substantially as follows: The defendant owned the lots in question, on which there was a small house. In the spring of 1883 the defendant rented this building to one John Straub for one year. Straub entered, and during his tenancy he placed in the building, for purposes of his trade, a counter, which was nailed to the floor, through the feet. After he held for a while, he let the plaintiff into the building as tenant under him, and sold this counter to plaintiff for the sum of fifty dollars. The plaintiff while so in possession erected some shelving and put up a partition of plank in the building, which building he used as a cigar store. The plaintiff had no dealing with defendant, but paid his rent to Straub. Straub paid rent to defendant as the tenant during all the time plaintiff held the premises. While plaintiff so occupied the building the defendant, by an ordinary warranty deed, conveyed the lots, with the appurtenances, to Hollis and Vroom. Some time after this, Hollis and Vroom learning that plaintiff was about to vacate the building and intended to remove said fixtures, informed him that they had bought the premises, and claimed that the fixtures passed with the deed, and forbade him from removing them. After this, the plaintiff voluntarily quit the premises, leaving the fixtures in the house. Thereupon the said Straub resumed possession of the building, and for the remainder of his term paid rent to Hollis and Vroom. After plaintiff so left the house he instituted this action.
It does not appear that defendant knew the said fixtures had been placed in the house, and he testified that he did not intend by his deed to convey anything that belonged to Straub or plaintiff. Hollis and Vroom knew when they bought that plaintiff was occupying the house, and defendant informed them when he sold that he had rented the building to Straub for one year.
On this state of the proofs, the court, after refusing instructions, found the issues for the plaintiff. Defendant has appealed to this court.
CHARLES P. HESS, for the appellant.
I. Plaintiff has no cause of action against defendant for conversion. If plaintiff had a right to remove the fixtures as against defendant, he also had a right to remove them as against defendant's grantee. If, on the other hand, the fixtures were a part of the realty and passed by the deed, then plaintiff had no cause of action against defendant, there being no agreement between them Koetter v. Smith, 2 Wallace (U. S.) 491; Powell v. McAshan, 28 Mo. 70; Ewell on Fixtures, 80.
II. The ordinary warranty deed from defendant to Hollis and Vroom did not convey plaintiff's trade fixtures to them, plaintiff being in actual possession of the premises as a tenant at the time of conveyance. The threat of Hollis to sue if fixtures were removed was idle and should not have been noticed by plaintiff. Holmes v. Tremper, 11 Am. Dec. 238, and note; Kerr v. Kingsbury, 33 Am. Rep. 362; Wall v. Hinds, 4 Gray (Mass.) 256. A tenant may remove during possession, improvements and trade fixtures made by him, until his term ceases. After his possession ends, such right ends. Ewell on Fixtures, 86 to 96, inclusive.
III. The vendee acquires no greater title than his vendor had. 1 Hilliard on Vendors, 409; Lacey v. Giboney, 36 Mo. 320. The fact that tenant had possession of the property described in the deed was sufficient to put vendees on inquiry, and they were bound to ascertain the nature of tenant's rights. Ewell on Fixtures, ch. 9, p. 316; Winfrey v. Work, 75 Mo. 56; Bircher v. Parker, 42 Mo. 118; Ib. 43 Mo. 443.
F. P. WILEY, for the respondent.
I. The fact that Walsh was in possession when Hollis and Vroom purchased, imparted no notice to them, except of the length of his term; not even that " h?? had or had not paid his rent." Winfrey v. Work, 75 Mo. 56.
II. The deed passed the title to the fixtures to Hollis and Vroom between vendor and vendee. Washb. Real Prop. 338; Curry v. Schmidt, 54 Mo. 515; Thomas v. Davis, 76 Mo. 72, and cases cited.
III. " The sale of the improvements by the landlord and the application of the proceeds to his own use was a conversion of them, and entitles the lessee to compensation in damages." Bircher v. Parker, 43 Mo. 443; Koch v. Branch, 44 Mo. 542; Williams v. Wall, 60 Mo. 318.
IV. It is no matter that the plaintiff was in posession in this case, for the defendant here, knowing plaintiff's rights, directed the purchasers away from him, for the purpose of consummating the sale, and thereby making them innocent purchasers without notice; hence, leaving plaintiff to this remedy, or none.
I. This is an action of trover, or for conversion. The plaintiff claims that when the conversion took place, the property belonged to him as fixtures, part of which was placed in the building by the tenant of defendant, from whom he claims to have bought it, and a part of which he placed in the building after he had entered under defendant's lessee.
I understand the law to be, that to maintain the action of trover there must be either a taking from the owner, or an unwarranted assumption of control and ownership over the thing, or an illegal use or abuse of it, or proof of demand and refusal to surrender. Kennet v. Robinson, 2 J. J. Mar. 84. " There must be a destruction of plaintiff's property, or some unlawful interference with his use, enjoyment, or dominion over it; or an appropriation of it by the defendant to his own use in disregard or defiance of the owner's rights." Rand v. Oxford, 34 Ala. 477. It consists in a tortious act by the defendant by which he deprives the plaintiff of his goods, either wholly or but for a time. 2 Chitty Pl. 619 (16 Ed.)
I find none of the essential elements of these definitions in the facts of this case. The defendant did not touch the property. He did not interfere with it, nor interrupt the plaintiff's use and enjoyment of it. His only act, complained of, was to make a deed of conveyance of the real estate and its appurtenances to a third party. He never made any claim to it, nor notified the plaintiff not to remove it. The only notice of any adverse assertion of claim was from Hollis and Vroom. It is most questionable if this could be regarded as the semblance of a conversion. In Thorowood v. Robinson (6 Q. B. 769), it was held that a mere refusal to permit plaintiff's servant to come on defendant's premises to remove goods did not amount to a conversion. Hollis and Vroom did not interrupt plaintiff's possession. He held and enjoyed the property so long as he remained in the house, and he left without even an attempt to remove it.
In respect of a fixture thus situated and held, I hold, both on authority and principle, that the mere fact of a landlord making a deed to the realty during the tenancy is not of itself sufficient to support the action of trover. To so hold, would be, in my opinion, to revolutionize the whole doctrine of trover as universally recognized for ages, both in England and in America.
This precise question is considered and determined in Guthrie v. Jones (108 Mass. 191, 196), in which it was held that counters so attached to the building as to pass by a deed conveying the realty and appurtenances between vendor and vendee, although as between landlord and tenant, the latter might remove them as his property, yet the mere fact of a conveyance by the landlord to a third party during the tenancy, will not support the action for trover by the tenant against the landlord. This is supported by a multitude of adjudications. Bliss v. Whitney, 9 Allen 114; Hanrahan v. O'Reily, 102 Mass.; Robinson v. Austin, 2 Gray 564; Minshell v. Lloyd, 2 Mees. & W. 450; Burnside v. Twitchell, 43 N.H. 390; McIntosh v. Trosten, 3 Mees. & W. 184; Roffey v. Henderson, 17 Q. B. 573; Wilde v. Waters, 16...
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