Judgments accordingly.

(b.) Mortgage : real or chattel.

Trull V. Fuller

28 Maine, 545. - 1848.

Trover for a shingle machine and clap-board machine.

In April, 1840, Jacob Chamberlain gave plaintiff a mortgage on the machines in question, then fixtures upon his land. This mortgage was not recorded as a real estate mortgage, but was regarded as a mortgage of personalty. In Oct., 1840, one Ingalls obtained a judgment against Chamberlain on which a levy was made on the real estate, including said machines as a part thereof. Defendant claims under the execution and judgment.

Tennev, J. - It is competent for the owner of real estate to sell upon good and sufficient consideration, fixtures thereon, which would pass under a conveyance of the realty, if they were not excepted. The purchaser would be entitled to sever the same within the time stipulated, or if no time was agreed upon, within a period, which under all the circumstances, and according to the character of the subject of the purchase, would be deemed reasonable. But without a severance, or some indication, actual or constructive, that they had been sold, they would, as between the purchaser and attaching creditors, or subsequent purchaser of the real estate to which they attached, be considered as still a part of the freehold.

A conveyance of real estate to be valid, excepting against the grantor, his heirs, devisees and those having actual notice, must be by deed acknowledged and recorded in the office of the register of deeds in the county where the estate is situated. Rev. St. c. 91, secs. 1, 24 and 26. These provisions are substantially the same as those of the statutes of 1821, c. 136, sec. 1.

It follows, that to convey that which constitutes a part of the real estate, but which by a severance may become a chattel, so as to be effectual against those who are not excepted in the statute, the same formalities are required, unless a severance takes place. Against those who can legally insist upon these formalities, the interest attempted to be sold does not become personal property till there is a severance in fact, or until all that is required to convey real estate is perfected; before its former character can be changed by a sale, the sale must be such, as is necessary to convey property of that character; by a performance of a part only of what is required to pass a title to real estate, it does not cease to be what it was, prior to the first steps taken towards a conveyance.

This construction is not only necessarily inferred from the provisions of the statute, but upon a different construction, the registration law would be but an imperfect security to the grantees of real estate. It is often the case, that the most valuable portion of the estate referred to, in a deed of conveyance, are the buildings and fixtures thereon; and it is understood, that the title which a grantee obtains by a deed of land, is whatever the registry shows to be that of the grantor, unless he has actual notice of a different state of the title. This embraces not only the soil, but whatever is attached thereto, making a part of the freehold. If the owner could, without a severance and without the forms required, for the transfer of real estate, transmit machines in a mill or factory, as personal chattels, when they are so situated as to make a part of the freehold, while held by him, he could in the same manner convey the mill or factory or any buildings standing upon the land described in the deed by which he should subsequently convey the land to another, having no notice of the previous sales of the buildings.

The registry in the town clerk's office of mortgages of personal property, is intended to be of that property which was personal before it was mortgaged; it is unnecessary that the instrument winch is the evidence of an absolute sale of chattels should be recorded at all; and it could not have been designed that a mortgage of that, which was a part of the realty, before the mortgage was executed, should be recorded in the office of the town clerk, instead of the registry of deeds; nothing short of the latter could be constructive notice to attaching creditors or subsequent purchasers.

The machines which are in controversy, in this suit, have been decided to be a part of the real estate in a former hearing of this case. There is no evidence that they were severed from the freehold, before the levy, under which the defendant claims, or that he was notified of the mortgage to the plaintiff. The mortgage was not recorded in the office of the register of deeds of the county where the land was situated, but it was recorded in the town clerk's office, in the town where the mortgagor resided, before the levy. In every respect, the plaintiff treated the machines as personal chattels, and not as partaking of the character of a part of the real estate on which they were placed. The steps taken were insufficient to give him title as against the creditor, who made the levy upon the real estate.

This view renders it unnecessary to consider whether there was a valid attachment upon the writ in the action, which resulted in the judgment on which the levy was made.

Plaintiff nonsuit.

(3.) When Landowner May Not Sever Fixtures.

Witmer's Appeal

45 Pennsylvania State, 455. - 1863.

Bill to restrain defendants from selling certain machinery severed by one Henry Thoma from his real estate. It is alleged that the articles were so attached to the realty as to be a part thereof and subject to certain liens thereon, and that Thoma severed the same therefrom in collusion with Witmer and other execution creditors to enable them to levy thereon as chattels, the prior liens being more than the entire premises were worth.

The decree below required the defendants to replace the machinery and enjoined them from selling the same. From this decree Witmer appeals.

Wooward, J. - In affirming this decree, we wish to be understood as neither affirming nor denying the broad proposition that equity will, at the suit of a mere judgment-creditor, interpose to restrain such acts of a judgment-debtor, in possession as owner of real estate, as would constitute waste at common law. A judgment-creditor is not within the protection of our Act of Assembly of 29th March, 1832, Purdon, 1008, until he has brought his debtor's land to liability to sale on a venditioni exponas; but whether, independently of the statute, he is entitled to protection in equity before levy and condemnation, is the main question decided by the learned judge below, and the precise question which we do not mean to decide.