This feature of the mortgage was entirely unnecessary and meaningless, except upon the theory that the parties recognized and treated the engine and boiler and other enumerated articles as something distinct from the realty, in short, as personal property. This being so, the rule, which requires that effect shall be given to every part of a contract according to the manifest intention of the parties as expressed by the language employed, also requires us to hold that the intention of the parties to what is known as the bank mortgage, was to regard the machinery as personal property, and to include it in the mortgage as such. They took their mortgage, therefore, subject to the prior chattel mortgage of the appellant on the personal property. * * *
The conclusions thus reached result in a reversal of the judgment.
The judgment is accordingly reversed.
6 Gray (Mass.), 536. - 1856.
Shaw, C. J. - This is an action of tort, in the nature of trover, to recover the value of a steam engine and boiler. To maintain this action, the plaintiff must prove property in himself, and a conversion by the defendant.
Upon the facts stated, the court are of opinion that the engine and boiler, having been erected on the premises of Josiah Richardson, of which he was then the owner in fee, subject to several mortgages, became annexed to the freehold. Winslow v. Merchants' Ins. Co., 4 Metc. 306. This real estate comprised a manufactory occupied and carried on by said Richardson, and the engine was erected to furnish power for such manufactory. The steam boiler was permanently set in brick work, and could not be removed without taking down the brick work, and the engine was permanently annexed to the buildings. This permanent annexation of the engine and boiler to the freehold, de facto, rendered them part of the realty; and his agreement with the builders to give them a mortgage thereon as personal property, as against all those who took title to the estate in fee, was inoperative and void. No title to these articles passed as personal property to the mortgagees, which they could assert against a third party. The engine and boiler thus remained part of the realty till Josiah Richardson became insolvent, and the estate passed to his assignees, subject to the right of the mortgagees of the real estate; it was rightly sold by order of the commissioner, on their petition, and a good title passed to Harlow, the purchaser. He afterwards severed them, and thus reconverted them into personal property, as he lawfully might, and sold them to the defendant, who thereby took a good title.
The evidence of usage was rightly rejected; it could not be received to control the operation of law, arising from the actual annexation of the engine and boiler to the freehold. If it be said, it might have tended to show the intent of the parties; the answer is, that the intent of the parties was manifest enough from the agreement of the parties and the mortgage. But the difficulty was (by mistake of the law, no doubt), that this intention was one which the law could not carry into effect, that of hypothecating a portion of the realty, as personal property, without severance.
The fact that Harlow had full knowledge of the history of the mortgage, did not impair his right to be a purchaser.
It is to be observed, as a fact important to the present case, that the engine and boiler were purchased and set up in the factory by one who himself owned the freehold. Had they been so bought and placed by a tenant on leased premises, the case might have presented a different question.
Judgment for the defendant.
B. The chattel-owner, annexing, has an interest in the land.
a. The annexer is the general owner of the land or is on his way to become such.2
(1.) The Question Arises Between Real and Personal Representatives of the Annexer.
(a.) Between executor and administrator and the persons succeeding to a decedent's real estate.3
11 New York, 123. - 1854.
Action upon a promissory note.
In 1844 Lyman Bishop gave to one Blackman a mortgage upon his farm. Thereafter Bishop planted a hop-yard on the farm, and in 1849 died, still owning the farm, and while the hop-poles in question in this action were in use in the yard. Plaintiff, as executrix, sold the hop-poles, as personal property of the estate, to defendant, and the note in suit was given for the price thereof. At the time of such sale the hop-poles were in heaps in the hop-yard. Later on the farm was sold on the mortgage to one Nichols, who took possession of the hop-poles which he found on the place. Defendant alleges that Nichols got title to the hop-poles and that the consideration of his note has failed. The decisions below were in favor of defendant. Plaintiff appeals.
Gardiner, Ch. J. - The only question presented in this case is whether the hop-poles, at the time of the sale to the defendant, were personal property, or to be deemed part of the realty. This question, I think, is settled by the facts stated in the answer, to which the plaintiff has demurred. If hop-poles can constitute a portion of the real estate, the defendant acquired no title to those purchased by him, conceding the truth of the answer. Assuming, as we must, the truth of the facts alleged by the defendant in his answer, the hop-poles were, at the time of the sale, a part of the realty. Of course, no title passed to the purchaser, and the note in question was wholly without consideration.
1"Annexations in suo solo." - Ed.
2 As by adverse possession or under a contract for the purchase of the land. - Ed.
The root of the hop is perennial, continuing for a series of years. That this root would pass to a purchaser of the real estate, there can be no question. The hop-pole is indispensable to the proper cultivation of this crop. It is distinctly averred, and admitted, that the poles belonged to the yard upon these premises, that they were used for the purpose of cultivation, and were removed from the place where they were set, in the usual course of agriculture, with a view to gather the crop, and without any design to sever them from the freehold; but, on the contrary, with the purpose of replacing them, as the exigency of the new growth required. In a word, they were to be permanently used upon the land, and were necessary for its proper improvement.