Opinion
Opinion delivered July 10, 1950.
1. — Appeal and Error. Court of Appeals is not bound by the consent of the litigants to its appellate jurisdiction, and if the Supreme Court actually has appellate jurisdiction, it is the duty of the Court of Appeals to transfer the action to the Supreme Court.
2. — Courts. Where title to real estate must be affected by the judgment to be rendered on the entire case as made by pleadings and evidence, title to real estate is in issue, and the Supreme Court has exclusive appellate jurisdiction.
3. — Courts. In an action for an injunction to prevent defendant from removing a furnace, blower, stoker and other equipment from real estate belonging to plaintiffs, regardless of whether such equipment had been a part of the real estate at the time defendant secured possession or had been previously or subsequently separated from such real estate, "title to real estate" was not involved and the Court of Appeals had appellate jurisdiction.
4. — Appeal and Error. In an equity case, it is the duty of the Court of Appeals to decide a case according to the law and evidence in the case.
5. — Appeal and Error. In an equity case, Court of Appeals may not set aside judgment of trial court, unless such judgment is clearly erroneous, and should give due regard to opportunity of trial court to judge credibility of witnesses who testified in trial.
6. — Fixtures. In action by bank which had foreclosed trust deed and sold realty, and by bank's vendees, who had executed another trust deed to bank, to enjoin buyer from purchaser at chattel mortgage foreclosure sale from removing a furnace, and other items, from the realty, evidence sustained finding that such items had all been attached to realty at time previous owner had executed original trust deed and were intended to be fixtures, so that defendant buyer thereof had acquired no interest in them.
7. — Fixtures. Where the company that held a chattel mortgage on a furnace and other items from the owner of certain real estate, had permitted such owner to attach the items to the realty, and to procure a loan on the realty, the company lost its interest in such items.
8. — Injunction. Bank which had foreclosed trust deed and sold realty, and bank's vendees, who had executed another trust deed to bank, had sufficient interest in furnace and other property affixed to realty at time previous owner had executed original trust deed, to warrant issuance of injunction restraining buyer from purchaser at chattel mortgage foreclosure sale from removing such furnace and property.
Appeal from Circuit Court of Butler County. — Hon. Randolph H. Weber, Judge.
AFFIRMED.
Cope Ponder for appellant.
I. Every act of Robertson in connection with the articles in dispute proves that he never intended they should become a part of the realty, but should remain personal property. Nor did McCain who purchased both the realty and the items of personal property from Robertson ever consider or intend same as realty. Nor did anyone ever connected with this property consider or intend same as realty, except plaintiffs who claim it is a part of the realty because it is annexed thereto. Plaintiff Bank admits it knew about the chattel mortgage covering said property from Robertson to Butler County Finance Company, which was given to secure the purchase price of said property. In addition to the actual notice, which is admitted, both plaintiff Bank and Cruce, had constructive notice of the recorded mortgage and also defendant's recorded Bill of Sale. Nor did the property lose its identity or destroy the realty when removed. Under these facts and circumstances the courts hold: "The intention of the parties is the best test in determining whether the property remains personal property, or becomes realty." American Clay Machinery Co. v. Sedalia Brick Tile Co., 160 S.W. 902 and cases therein cited; Patton v. Phoenix Brick Co. 150 SW l.c. 1117 Par. 2, and cases therein cited; Kolb v. Golden Rule Baking Co. 9 SW (2) l.c. 844; pars. 9, 10, 11, 12, 13; United Iron Works v. Sleepy Hollow Mining Co. 1938 SW l.c. 444; Hampton v. Seible 58 Mo. App. 181; Stone v. Kelly 59 Mo. App. 214; Schulenberg v. Hayden 48 S.W. 472; Jones on Chattel Mortgages 5th Ed. pars. 472-478; 27 Cyc. 236, 19 Cyc. 1048. II. The law is well settled that where fixtures are placed in a building or annexed, and the owner executes a chattel mortgage on the fixtures, he thereby evinces his intentions that the property is personal property and shall retain its character as such regardless of the manner in which it is annexed to the freehold, until the conditions of the mortgage have been complied with. Patton v. Phoenix Brick Co., 150 SW l.c. 1117, par. 2, and cases therein cited; Kolb v. Golden Rule Baking Co., 9 SW (2) l.c. 844. III. Plaintiff Bank acquired whatever claim it has to the property in question by virtue of foreclosure of the deed of trust on the realty which Robertson had given them on the realty, but not upon the fixtures, as it merely described the real estate. Where deed of trust describes the realty and then states, "together with all improvements thereon," the deed of trust does not cover "fixtures." R. Williams Co. v. Farm Home Loan Asso., 272 SW l.c. 1009. IV. Purchasers of real estate knowing of the existence of a chattel mortgage on personal property annexed thereto, are bound to know all the requirements and conditions, and the object and purpose for which it was given, in so far as same could be ascertained from a reading of the instrument; and bound to follow to its legitimate ending every clue suggested by the chattel mortgage dictated by due prudence and caution, and cannot close their eyes to the contents of the record and say that they never saw the chattel mortgage, even though they knew one was on record. Nor can they close their ears to what was told them, or as to what they had been informed. The law says one must discover the facts and is presumed to have discovered such facts that he did or should have discovered. Barrett v. Baker, 33 SW l.c. 163-164; Tydings v. Pitcher, 83 Mo. 384; Jennings v. Todd, 24 S.W. 148. And it is held that where one purchases property under the conditions set out in above paragraph after notice of a prior right, or equitable claim or lien, in equity he becomes a mala fide purchaser, and will not be permitted to defeat the rights of the other; and the rights of plaintiffs acquired at the sale under the deed of trust are subordinate to the chattel mortgage then in existence and on record, and of which plaintiff Bank had actual notice. Nor will equity aid or assist, or permit, plaintiff Bank to acquire property to the exclusion and damage of others at no cost to it, under the facts and circumstances of this case. Barrett v. Baker, 33 SW l.c. 163-164. V. Where action is brought in name of one who is not the owner and not in possession of the property, they are not proper parties to bring such action, and not entitled to injunctive relief. Perkins v. Mason, 79 S.W. 987, 105 Mo. App. 315. VI. Where a chattel mortgage is given upon personal property or fixtures it is a prior and superior lien to a subsequent contract, mortgage or deed of trust, or subsequent liens. Same cases cited under Point I., Supra.
Phillips Phillips for respondent.
I. In Point No. I of the Appellant's brief, under Points and Authorities, at Page 12, he briefs the proposition that the intentions of a person with regard to the attaching of personalty to real estate, is the governing factor, as to whether such personal property becomes a part of the realty. This apparently is the law. In the case of Moller-Vandenboom Lumber Company v. Boudreau, 85 S.W.2d 141, 231 Mo. App. 1127, the Court said: "So that the removability of a structure is not the sole test of whether it is real property, personal property, pure and simple, or a fixture. The question of intention is very important and ofttimes controlling in solving this problem." Again in the case of Matz v. Miami Club Restaurant, 127 S.W.2d 738 l.c. 741, (Mo. App.) the Court stated: "The elements of a `Fixture' (something otherwise personal, but attached to the realty under such circumstances as to become a part of it in a particular instance) are commonly said to be annexation, adaption and intent; with the latter ordinarily of paramount importance, at least in the case of controversies between seller and purchaser, or between landlord and tenant, where the controlling question is usually that of whether the intention in annexing the article to the realty was to make it a permanent accession to the land." Again in the case of Armstrong Cork Company v. Merchants Refrigeration Company, 184 F. 199, 107 CCA 93, the Court held that the true test of the character of an improvement is the intent of the owner of real estate to incorporate, or not to incorporate, it permanently in his realty as a part thereof. This question is treated in 36 Corpus Juris Secundum No. 894 as follows: "In determining whether an article is a fixture, the intention of the party making the annexation and whether it was intended to make the property annexed a permanent accession to the freehold is one of the requisites necessary to make a fixture. The intention is the primary test, the one of paramount importance. Such intention, the one of primary importance has been said to be controlling; and ordinarily, if the person annexing chattels to real estate intends them to become a permanent accession to the realty, they are fixtures and part of the realty in the eyes of the law." In view of the above citations, what was the intention of John Robertson in the present case? He was operating an automobile business at the corner of Vine Street and U.S. Highway 67 in Poplar Bluff, Missouri when he first had possession of the property now in controversy. On July 26th, 1947, Robertson purchased the real estate from Ed West and wife, on which is now located the garage of the plaintiff Cruce. Sometime between July 26th and August 11, 1947, the property was moved to the new location. The furnace was put in the basement and imbedded in concrete; the furnace pipes were installed, the furnace blower and stoker were placed on the furnace, the water cooler was attached to the property by the use of water pipes, the fluorescent lights were bolted to the ceiling and the switches were placed in the walls. Thereupon, Robertson moved his garage to the real estate in question, giving up his former business location. Under such circumstances, can we seriously doubt the intention of Robertson? Clearly it was his intention to make the new building his place of business and he placed the controversial property in the building, intending that it should become a fixture as a part of the realty. II. Although the intention of the person placing property on real estate is of paramount importance, there are also other considerations. One of these is the question of the annexation to the real estate. All of the property in controversy was actually, physically annexed to the property and cannot be said to be trade fixtures. In order for the building to be used as such garage or for any other business location, for that matter, it was necessary that the property in controversy be installed. In 36 C.J.S. Page 906, the following statement is made: "In general, any actual annexation of the article to the realty or to something appurtenant thereto is sufficient to constitute an article a fixture." The question of annexation is also treated in 22 American Jurisprudence, page 716, wherein it is said: "The first of the tests outlined in the preceding paragraph, that is, annexation to the realty, either actual or constructive, is generally considered to be uncertain and unsatisfactory, the tendency being to accord less and less significance thereto. There must, of course, be actual or constructive annexation, but regard must be had to the object, the effect and the mode of annexation." This question has been passed on in the State of Missouri and certain items have been declared fixtures. In the case of Goodin v. Elleardsville Hall Assn., 5 Mo. App. 289, it was held that a furnace hot air flue and air vents, constituting a system of heating in a house were fixtures and a part of the realty. Again in St. Louis Radiator Mfg. Company v. Carrol, 72 Mo. App. 315, the court held that radiators placed in a dwelling and so constructed as to provide for the necessary heating of the building, placed therein by the owner with the intent that the same should remain there as a part of the heating system are fixtures, and were subject to mechanic's lien. Also in Thomas v. Davis, 76 Mo. 72, it was held that machinery placed in a building for purpose of smelting lead was a fixture and passed with the real estate. In Buchanan v. Cole, 57 Mo. App. 11, it was held that a gravity plant for mining consisting of engine, boiler, crusher, etc., was a fixture. The plaintiffs herein contend that when Robertson purchased the real estate described in plaintiffs' petition and moved his garage there that he contemplated making that his permant location. Thus, when he put in the heating system, light system and water cooler, he intended them to be fixtures and part of the realty. If such assumption is correct, then and in that event the plaintiff should be awarded the judgment in this case. On June 12, 1947, Robertson and wife executed a promissory note and chattel mortgage to Robertson Motor Company for $32,400.00. While this note and chattel mortgage were in effect, he purchased the building from West on July 26, 1947. In between July 26th and August 11th he moved into the building and affixed the property to the real estate. On August 11th, 1947, Robertson and wife executed another note in the sum of $30,210.00 and mortgage on the property which purportedly cancelled the former encumbrance. III. The appellant in Point No. II. of his Points and Authorities, in his brief filed herein, states that where fixtures were placed in the building and annexed thereto and the owner executes a chattel mortgage on the fixtures, he thereby evinces his intention that the property is personal property and shall retain its character as such. He cites two cases, one of which is Patton v. Phoenix Brick Company, 150 S.W. 1116. This case is distinguishable in that the facts are different than the case at hand. In that case, certain machines were placed in the building but the title to the machines remained in the seller under a conditional sales contract. In the present case, the controversial property placed on the real estate was the property of John Robertson at the time it was placed thereon and the real estate itself was owned by John Robertson. He also cites the case of Kolb v. Golden Rule Baking Company, 9 S.W.2d 840 l.c. 844. Again, this case can be distinguished from the present one in that in the Kolb case, an agreement was made between the person installing a baking oven and the owner of the real estate that they should use the oven until such time as they had paid for it under the terms of the sales contract entered into between the parties. When the terms of said contract had been fully complied with and all of the installments paid, then the party installing the oven was to execute a Bill of Sale to the owner of the real estate for the oven. As can be seen from these facts, this case is distinguishable in the same manner as the preceding case in that the party owning the real estate never at any time owned the baking oven that was placed on his property and he agreed with the manufacturer of the oven that it could be removed unless it was fully paid for. IV. In Point III of Appellant's Points and Authorities, the statement is made that the plaintiff Bank acquired whatever claim it has to the property in question by virtue of foreclosure of a Deed of Trust on the realty given to them by Robertson and that this only described the real estate and not the fixtures. When representatives of the plaintiff bank were looking over the property prior to purchase they were informed that in case a sale was made of the building, that everything in the building except the auto parts went with the sale. Relying on such statement, the bank purchased the property from Robertson — became a purchaser without notice. Such being the case, the purported chattel mortgage does not constitute a prior lien on the property. In 22 American Jurisprudence No. 732, we find the following: "It is almost unanimously held that the rights of a purchaser of realty without notice of the claim of the seller of chattels which have been annexed to the realty are unaffected by the latter's retention of the title thereto or a mortgage or other lien thereon to secure payment of the purchase price. — Thus, according to the rule that obtains in most jurisdictions, the property covered by the chattel mortgage is not removeable as against a subsequent purchaser of the realty without notice." Thus, in our case, the plaintiff Bank, through their representatives would not be required to investigate further when they were assured that everything in the building except parts went in the sale and where the property in controversy is always treated as fixtures. No person, however careful, would expect a chattel mortgage on the property herein involved, since it is always regarded as fixtures. The respondents wish to call the attention of the court to the fact that if the property in controversy had been removed by Casey when he moved out of the building, the title to which had been obtained by foreclosure of a Deed of Trust by the Bank of Poplar Bluff, that such building would have been useless and in order for it to be used, it would have been necessary to replace all of the property. Under such circumstances the respondent urges that the property attached to the real estate was a part of the real estate itself. V. When the Bank of Poplar Bluff loaned Robertson $30,000.00 on the real estate in question and took a mortgage and Deed of Trust back, the plaintiff's agent inspected the real estate described in the petition and evidence, and at that time the property in controversy in this case was attached to the property; the furnace was attached to concrete base with stoker attached and stoker coal in the coal bin, furnace pipes had been installed in the floor and walls to reach their destination and for the purpose of supplying heat; the fluorescent lights were attached to the ceiling, the places used in the conduct of the affairs of the garage and the electric water cooler was installed in the filling station located on the said property adjacent to the garage building. When the Butler County Finance Company foreclosed their chattel mortgage on February 6th, 1948 and became the purchaser of the personal property set out in the chattel mortgage from Robertson to them, the plaintiff Bank of Poplar Bluff announced their claim to the fixtures here in litigation at the time and place of such sale. There was never any question but that the Bank was claiming the property in controversy as fixtures and real estate and the testimony was that if this property had not been attached to the building, that the Bank of Poplar Bluff would not have loaned Robertson the money. At the time the Bank was inspecting the property, Robertson stated to them that everything in the building except the parts was subject to the Deed of Trust. John Robertson and wife executed a chattel mortgage on the property in question to Robertson Motor Company on June 12, 1947. Between this date and August 11, 1947, Robertson moved his garage from his original location to his new building on the real estate involved in this action. Subsequent to his moving, there was a new chattel mortgage issued on property which included the property in controversy in this case. In other words, the subsequent chattel mortgage of August 11, 1947, cancelled the original chattel mortgage and since the property involved in this law suit had by August 11, 1947 become annexed to the real estate in the new location, Robertson could not then execute a chattel mortgage on that property. As a result of the above, at the time the Bank of Poplar Bluff obtained a Deed of Trust to the real estate in question, the property in controversy was a part of the real estate and there was no previous encumbrance in force against it at that time. VI. Appellant states in his Point No. V of his Points and Authorities, that where an action is brought in the name of one who is not an owner and not in possession of the property, that such person is not a proper party to institute an action and therefore, not entitled to injunctive relief. The Bank of Poplar Bluff had sold the real estate in question to Guy Cruce and Imal Coral Cruce, his wife and at the time of the filing of this action, there was still $30,000 due on the property, and although the title to the property was in the name of Guy Cruce and Imal Coral Cruce, his wife, the Bank of Poplar Bluff was still interested and at the time of the filing of this law suit had more interest in the property than any other party involved. Consequently, as a cestui que trust, the Bank of Poplar Bluff was a proper party to this law suit and hence, this assignment of error in the case is of no avail to the appellant.
This case involves the right of respondents to maintain an injunction suit to prevent appellant from removing certain property, alleged by appellant to be personal property, from Lot Thirteen (13) in Block One (1), etc., located in the city of Poplar Bluff, Butler County, Missouri.
A petition was filed in the Circuit Court of Butler County, Missouri, on July 7, 1948, by Respondent Bank of Poplar Bluff, a Corporation. It afterwards appeared that respondents Guy Cruce and Imal Coral Cruce claimed some interest in the particular property, by reason of a purchase by them of the described real property from respondent Bank, subject to its deed of trust thereon, and their names were added as plaintiffs in an amended petition.
On April 12, 1949, defendant, now appellant, filed his answer to such amended petition. The trial court entered its findings and judgment on August 9, 1949. Defendant filed his motion for a new trial in proper time. The trial court overruled defendant's motion for new trial on September 13, 1949. Such defendant filed his notice of appeal to this Court on September 21, 1949. The time for preparing and filing the transcript on appeal was afterwards extended. The case is thus before us for consideration.
Both appellant and respondents agree that this Court, and not the Supreme Court, has appellate jurisdiction. The amount involved is well within the appellate jurisdiction of this Court; but we are not bound by the consent of the parties to the appellate jurisdiction of this Court, if the Supreme Court actually has such appellate jurisdiction. In that event, it would be our duty to transfer the case to the Supreme Court, notwithstanding such consent. Lammering v. Gerhardt (Mo. Supreme Court) 229 S.W. 338, and cases cited.
The Supreme Court has exclusive appellate jurisdiction where the title to real estate is in issue, regardless of the amount involved. Article V, Section 3, of the 1945 Constitution. So the question for us to decide is whether or not the title to real estate is involved in this case, regardless of the agreement of appellant and respondents that appellate jurisdiction is in this Court and not in the Supreme Court.
In Hilton v. The City of St. Louis, 129 Mo. 389, l.c. 391, Judge Macfarlane, speaking for the Supreme Court, said:
"The constitution does not declare that the jurisdiction exists if a question of title is involved in the trial, but that the case tried must involve the title. We take the provision to mean that the title to real estate must, in some way, be affected by the judgment to be rendered on the entire case as made by the pleadings and evidence. This seems to be the view this court has uniformly taken. Bobb v. Wolff, 105 Mo. 52; Blondeau v. Sheridan, 103 Mo. 134; Bailey v. Winn, 113 Mo. 161; State ex rel. v. Rombauer, 124 Mo. 598."
This rule has apparently been followed by the Supreme Court ever since the case above cited. Fischer v. Johnson, et al. 139 Mo. 433, 41 S.W. 203; Schroer v. Brooks, (Mo. Supreme Court) 200 S.W. 1068. The case of Gray v. Worst, 129 Mo. 122, has been overruled.
We therefore must rule that the title to real estate is not involved in this case, regardless of whether or not the items claimed by appellant were part of the real estate at the time he secured possession of the real estate, or were previously or at any subsequent time separated from such real estate, as a part thereof.
Among other things, the trial court found as follows:
"The Court further finds that John Robertson bought the real estate described in plaintiff's petition and in evidence from one Ed West and moved there in August of 1947 and on November 3, 1947, he and his wife executed a note secured by a deed of trust on said property to the plaintiff, Bank of Poplar Bluff, which was recorded in the office of Recorder of Deeds on the same date.
"The Court further finds that at the time of the note and deed of trust to the plaintiff Bank of Poplar Bluff, said plaintiff's agent inspected the real estate described in the petition in evidence and that there was then attached thereto one furnace, one furnace blower, one furnace stoker, furnace pipes, electric water cooler, fluorescent electric lights, equipment, fixtures and switches, all of which have been described in evidence and are in issue in this cause and which are the same items included in the chattel mortgage aforesaid to the Robertson Motor Company and later assigned to the Butler County Finance Company; that the furnace was attached to a concrete base with stoker attached and stoker coal in the coal bin; that pipes from the furnace had been inserted through floors and walls to reach their destination for the purpose of supplying heat; that the fluorescent light fixtures were attached to the ceiling at places used in the conduct of the affairs of a garage building and the electric water cooler was installed in a filling station located on said property and adjacent to the garage building.
"The Court further finds that John Robertson doing business as the Robertson Motor Company used the real estate and buildings there on as a garage and automobile sales building and filling station in conjunction therewith; that he moved into said properties in the fall and operated all of it and that the furnace, stoker, blower, fluorescent light fixtures, equipment and switches and the electric water cooler were attached and annexed to the property and by their use adapted to the uses of said real estate and by the actions and use of John Robertson, then the owner, intended to be fixtures to the realty."
Further in its findings of fact, the trial court said:
"The Court further finds that the plaintiff Bank of Poplar Bluff foreclosed their deed of trust March 31, 1947, and on June 2, 1948 sold the real estate in question to Plaintiffs, Guy Cruce and Imal Coral Cruce and took a deed of trust to secure the unpaid balance of the purchase price.
"The Court further finds that the defendant has no interest in and has not acquired any interest in and to the furnace, furnace blower, the furnace stoker, the furnace pipes, fluorescent electric lights, equipment, fixtures and switches and electric water cooler."
Whether the items here involved were a part of the real estate, or were at one time separated therefrom and were the personal property of John Robertson, does not involve the determination of the title to real estate, under the cases cited. If such items were a part of the real estate and were not personal property, such fact only determines the rights thereto of the parties in the suit, and does not involve title to the real estate itself.
Our task then, is to determine whether or not the trial judge was justified, under the evidence, in making the findings he did make.
While it is our duty, in an equity case, to decide the case according to the law and the evidence in the case, and to reach our own conclusions thereon, we may not set aside the judgment of the trial court, unless such judgment is clearly erroneous, and due regard should always be given to the opportunity of the trial court to judge of the credibility of the witnesses, who testified in the trial.
Civil Code, Mo. R.S.A. Sec. 847.114 (d); Lowe v. Lowe, 229 S.W.2d 7, l.c. 13; A.A. Electric Machinery Co. v. Block, (Mo. App.) 193 S.W.2d 631, l.c. 635; St. Louis Union Trust Co. v. Busch, 346 Mo. 1237, 145 S.W.2d 426.
So we must examine the evidence in the case for ourselves, with this rule in mind.
Ed L. Abington was the first witness for plaintiffs (respondents). He was president of the Bank of Poplar Bluff. He testified to a conversation with John Robertson in November, 1947. Among other things, witness Abington said:
"Q. Colonel, did you have an occasion to go out and view this property before any loan —
A. Me and Mr. Saracinie went out and viewed it.
Q. He is cashier of the Bank of Poplar Bluff?
A. Yes, sir.
Q. That was before any loan was made?
A. Yes, sir.
Q. When you went out there will you describe to the court the buildings that you saw there at that time where the Cruce Pontiac Company is now located? Just more or less give a complete description of the building.
A. Well we went over the property and inspected it in contemplation of the loan.
Q. Now at the time you inspected this property Colonel, I will ask you with reference to specified items here. Did you have occasion to inspect the furnace at that time?
A. I did.
Q. Where was the furnace located?
A. In the basement.
Q. In the basement of the building?
A. Yes.
Q. And did you and Mr. Saracinie and Mr. Robertson go down and view the furnace down there?
A. Yes, sir.
Q. Do you recall what type of furnace it was?
A. Well it is what they call a hot air furnace, sheet iron sheet metal furnace with pipes running in different directions.
Q. Up —
A. Carrying the heat up in the building.
Q. These pipes were running upstairs is that correct?
A. Yes and heat from the furnace up to the upstairs part of the building that is on the street level.
"Q. That is where the shop is now of the Cruce Motor Company?
A. Yes and office.
Q. And at the time you went down there will you describe to the court the condition of the floor of the basement, if you recall?
A. Well the floor, the basement was all earth except the part that the furnace was sitting on and that was concrete, concrete block about, something like ten feet square, ten or twelve feet that the furnace was sitting on.
Q. Do you recall what portion of the basement that was located in?
A. I think it was in the Northwest part of the basement.
Q. Northwest corner of the basement?
A. Yes, sir.
Q. Can you state to the court whether or not the furnace was fastened down to the concrete, if you recall?
A. Well I don't know whether it was fastened with bolts or anything but it was on the concrete, sitting on the concrete.
Q. Sitting in the concrete?
A. Yes.
MR. COPE: He said on it. * * *
Q. * * * Now did you also see at that time any fluorescent lights out there Colonel Abington?
A. Yes there was some lights in the office and I believe out in the show room. I am not sure about that but I think that is right.
Q. They were in the show room, were they ceiling lights or do you recall?
A. Yes ceiling lights. * * *
Q. When you went out there Colonel Abington and talked to him regarding this loan, making this loan did you take into consideration that this furnace and other material or other items which I have mentioned here were a part of the consideration for the loan to be made?
MR. PONDER: Object to that because the written deed of trust itself shows on what the loan was made and any oral or verbal agreement that they might have had or understanding wouldn't change the terms of their written instrument.
Q. This isn't no oral or verbal agreement.
THE COURT: That is the exact issue that will be before the court as to interpretation of the instrument and I don't think it will hurt anything for the witness to answer this question. Let the objection be overruled and the court will consider it, whether it is proper to be considered at the time the case is to be passed upon.
MR. PONDER: All right.
Q. You remember the question Colonel?
A. Yes. Well when Robertson made the application for the loan, thirty thousand dollars we went out to inspect it, Saracini, the cashier and myself. We went all over it and I think he had four or five small residence on the property. That is we went over all of it in the building and looked it over and of course we naturally wanted to know what kind of heating apparatus he had or accommodations and he took us down to the basement and showed us this furnace sitting there on the concrete and said it was part of the fixtures and I assumed that it was and we of course considered that in making the loan. We approved the loan of thirty thousand dollars."
Girard L. Saracini, cashier of respondent Bank, testified for respondents, and corroborated Abington in all respects. His testimony, which is very long, we do not think it necessary to quote.
Jim Brown testified that Cruce of the Cruce Pontiac Company, later removed the furnace and probably other items from the garage building and placed others in their stead. His testimony tended to prove that the furnace and other items were in the garage building after Robertson left the garage.
Guy Cruce (one of the respondents) testified that the furnace was still in the same position when he came into possession of the garage later on.
William Casey, defendant below, and appellant here, testified that he got the furnace and the other items involved from the Butler County Finance Company, on February 6, 1948, and paid $6000 therefor. From his questions and answers, we reproduce the following:
"Now at the time you went out there and took charge after you bought this personal property, was this water cooler hooked up and in operation?
A. It wasn't at the place no, sir.
Q. It wasn't at that time?
A. No, sir.
Q. Who had that hooked up?
A. I had it hooked up myself.
Q. In other words you had the water pipe from the building there to go in and connect it up with the water tank?
A. That is right.
THE COURT: Did you put in any pipe?
A. Yes.
Q. I mean pipe from the source of the water supply or was that already there, was it just merely a connection, question of hooking it to the water fixture that was already there or did you have to run a pipe back to the source of supply?
A. I think we put in about twelve feet of pipe.
MR. COPE: Where did you run it from one of the water pipes in the building up to where the water tank was sitting?
A. Yes.
"Q. Then there was a connection there on the water tank to screw onto it?
A. Yes.
Q. And then that let the water come in?
A. Yes.
Q. Now was the stoker connected up to the furnace?
A. Yes.
Q. It was all in operation when you went out there?
A. Well I would say no because we had something done to it but as far as knowing what was done to it, they hooked it up and got it in operation when I got there. What they done to it I don't know.
Q. Now was this furnace fastened in any way or just sitting there on the concrete block?
A. Just sitting on the concrete block.
Q. The furnace, I mean the basement of that building was not concreted I believe.
A. It wasn't.
Q. Now, was all the pipes to the furnace running around all of the rooms when you went there?
A. No there wasn't. We hooked one pipe from the big pipe.
Q. Now these fluorescent lights, they are lights that are in the main building there?
A. Yes.
Q. How many of those were there there?
A. There was sixteen large ones and four small ones.
Q. And there was a fan there in the building I believe, a circulating fan or something?
A. Yes.
Q. Now did you buy all those articles from the Butler County Finance Company?
A. I didn't buy the fan.
Q. Did you get the fan, where did you get it?
A. You mean to the stoker?
Q. That is right, the fan is in the stoker.
A. Yes I bought all that.
THE COURT: You bought what now?
A. The fan and stoker.
THE COURT: Maybe I misunderstood you, was the fan, you mean the fan was part of the stoker or was part of the blower to blow the hot air in?
A. Yes.
Q. Sitting over to the side of the furnace, was it attached to it?
A. It wasn't attached now. It wasn't attached to the furnace.
Q. Didn't have a hood or anything over it?
A. I wouldn't be sure whether it had a hood over it or not but it wasn't attached because I had it attached to the furnace after I got out there.
"Q. You had the fan or the blower —
A. The blower.
Q. Was it there though when you went out there?
A. It was there."
Loring McCain was called as a witness by appellant. Although he claimed to have received a bill of sale from Robertson for the furnace and other property here involved, his testimony failed to corroborate the testimony of appellant Casey in many respects. He said that the furnace and other items were in the garage building when Casey went into it; that they belonged to the Butler County Finance Company, and he made no claim to them. He admitted, on cross-examination, that Girard Saracini made some claim to the property for the bank at the time the Finance Company foreclosed its chattel mortgage. When questioned by the trial judge, he said that he had made no claim to the property against the Butler County Finance Company.
Eli Sliger testified that John Robertson, d/b/a Robertson Motor Company, made a chattel mortgage to Butler County Finance Company on August 11, 1947, and, at that time, the property was "in transit," which must have been before Robertson gave a deed of trust on the property to respondent bank. The Finance Company sold the property under its chattel mortgage and bought it in.
The trial court evidently did not believe that the chattel mortgage to the Butler County Finance Company and the foreclosure of that chattel mortgage were in good faith, for the trial court said:
"The Court further finds that John Robertson sold the real estate in question to Loring McCain January 2, 1948, subject to plaintiff Bank of Poplar Bluff's deed of trust, and also the personal property described in said chattel mortgage and subject to said chattel mortgage; that said Loring McCain leased the real estate and sold the personal property to the defendant; that all the aforesaid transactions were subsequent to plaintiff Bank of Poplar Bluff's deed of trust and subsequent to the annexation, use, adaption and intention of said John Robertson to make the furnace, stoker, blower, light fixtures and water cooler fixtures herein."
Dennis Berry testified for defendant about a meeting attended by Abington, Saracini, McCain, Casey, one of the boys from St. Louis, and others. He testified to an agreement between the Bank and the Finance Company, as to the conditions on which appellant Casey could get a lease on the garage building. He did not attempt to describe the property claimed by the Finance Company, and gave no testimony to any statement concerning that from respondent Bank.
The only other witness put on the stand by appellant was Beulah Robertson, from the office of the Recorder of Deeds. Her testimony was limited to the similarity of an instrument produced with an original of the same kind recorded in her office.
We are satisfied that there was ample substantial evidence in the transcript to support the finding of the trial judge that the furnace and other items involved were in the garage, and attached to it as a part thereof by Robertson, at the time respondent Bank made its loan to Robertson. If the Finance Company, before that time, had permitted Robertson to attach the property involved to the real estate and to procure a loan from the Bank, after such attachment to the real estate, its claim of title to the personal property involved, before the alleged sale to appellant and the execution of the deed of trust to the Bank, comes with poor grace, to say the least.
Whether or not the furnace and the other items involved were fixtures in the garage at the time respondent Bank made its loan to Robertson, had nothing in the World to do with the title to the real estate itself, and the only question for the trial court and for this Court to decide is whether or not respondent Bank and the Cruces had sufficient interest in such property to warrant the issuance of an injunction against appellant to prevent him from removing that property from the real estate covered by the deed of trust, held by Respondent Bank.
The trial court had the right to believe respondents' witnesses, and to disbelieve appellant and his witnesses, and to find that such property was attached to and a part of the real estate covered by the deed of trust, held by respondent Bank, and later sold to the Cruces, subject to such deed of trust. We feel that the judgment of the trial court in this respect should be approved.
Appellant made ten assignments of error in his brief. What we have said above and what we have approved in the findings of the trial court, dispose of most of these assignments, and we see no necessity of lengthening this already long opinion by quoting such assignments. Where appellant charges that the trial court did not always quote the testimony correctly, such quotations have been omitted by us. The other assignments are clearly against the law and the evidence in this case, and we overrule all of appellant's assignments of error.
Finding no error in the trial of the case, or merit in appellant's assignments of error, the judgment of the trial court should be and is approved, and that judgment is affirmed.
It is so ordered. Vandeventer, P.J., concurs; McDowell, J., concurs.