Opinion
02-27-1890
DOUGHTY et al. v. OWEN et al.
S. V. Hulse, for complainant. John A. Miller, for defendant.
Bill for injunction.
S. V. Hulse, for complainant. John A. Miller, for defendant.
BIRD, V. C. This contest is between the purchaser of real estate under the sale by virtue of a fi. fa. issued upon a decree entered in proceedings to foreclose a mortgage of which such purchaser was the owner, and a judgment creditor whose judgment was obtained after such sale. There was upon the premises so purchased, a steam-engine, boiler, shaftings, pulleys, and belting, upon which the judgment creditor has levied, and advertised for sale. The purchaser under the foreclosure proceedings asks to have this sale enjoined. The execution creditor claims them as chattels; the purchaser, as fixtures. The mortgage came to the purchaser by assignment, and before the engine and boiler were placed upon the premises; but the shafting and other articles named were attached to the building before such assignment, if not before the execution of the mortgage. The building is a three-story building, and has for a long time been used for manufacturing purposes. Different portions of it have from time to time been leased to persons prosecuting different branches of industry. The power which they have used has been supplied by the engine in question since it was placed upon the premises, and prior to that from another source. Therefore, there can be no doubt that the building was devoted solely to manufacturing purposes, and that the owner supplied the power, by the means above indicated, for propelling the machinery used by the different tenants and occupants. The building was so constructed that three of the main walls thereof formed an open space or area from 6 to 10 feet in depth, and wideenough to receive the engine and boiler. After the engine and boiler were placed in position, this space was in closed with a structure of posts, studs, and boards, and a roof of tin, covered with gravel and cement. From the testimony, there is much uncertainty as to the exact dimensions of the engine and boiler. The former is perhaps 4 to 5 feet in length, and the latter 4 feet in diameter by 12 to 15 high. The engine is placed upon a stone and brick foundation, let into the ground 3 feet, laid in cement, through which run 5 or 6 bolts, called "anchor bolts," to which the engine is screwed fast by nuts. The boiler stands upright upon a large flat stone, and is attached to the engine by means of a steam-pipe, with strong bolts and nuts, in other respects being maintained in its position by its own weight. Holes are made in the walls of the main building so as to communicate power to the shafting to the various apartments. The shafting, in most instances, if not in all, is not attached to the beams or joists, but to pieces of timber, which pieces are attached to such beams or joists.
Are these fixtures, or personal property? If we consider the intention or design had in mind when they were attached to the premises, I think they must be regarded as fixtures, or part and parcels of the real estate. The building was devoted to manufacturing purposes. The manufacturing carried on was by means of machinery. There is no means by which that machinery could be propelled except by steam or some other agency. For that purpose the owner of the equity places this engine and boiler upon the premises, and in closes it as above mentioned; all the shafting, pulleys, and belting having been attached to the building a long time previously. While the various tenants would come and go with their machinery, the engine, boiler, and other things named would remain as part and parcel of the premises. Under all the leading authorities in this state, it seems to be my duty to pronounce the articles in question "fixtures," and to pass to the purchaser under foreclosure sale. "As between mortgagor and mortgagee, when * * * a thing appertains to the real estate, is necessary for its enjoyment, and is permanently attached to the freehold, its character as a fixture, resulting to the benefit of the mortgagee, is determined. As to the permanency, that does not depend so much upon the degree of physical force with which the thing is attached, as upon the motive and intention of the party in attaching it. If the article is attached for temporary use, with the intention of removing it, a mortgagee cannot interfere with its removal by the mortgagor. If it is placed there for the permanent improvement of the freehold, he may. "Crane v. Brigham. 11 N. J. Eq. 29. This principle seems to have been followed in all the other cases in this state in which the question has been considered, (McMillan v. Fish, 29 N. J. Eq. 610; Watson v. Manufacturing Co., 30 N. J. Eq. 483; Quinby v. Paper Co., 24 N. J. Eq. 260;) and such seems to be the rule adopted in other states, (Voorhees v. McGinnis, 48 N. Y. 278.) In this case the machinery was adapted to the purposes for which the building was employed, and was firmly attached thereto, but could all be removed without injury to the walls. Gray v. Holdship, 17 Serg. & R. 413, 17 Amer. Dec. 690, 691, note; Dudley v. Hurst, 8 Atl. Rep. 901; Foote v. Gooch, 1 S. E. Rep. 525; Thomas v. Davis, 76 Mo. 72; Hamilton v. Huntley, 78 Ind. 521; Jones v. Chair Co., 38 Mich. 92; Hutchins v. Masterson, 46 Tex. 551; McConnell v. Blood, 123 Mass. 47; Mill Co. v. Hawley, 44 Iowa, 57; Sweetzer v. Jones, 35 Vt. 317; Despatch Line v. Manufacturing Co., 12 N. H. 205; Teaff v. Hewitt, 1 Ohio St. 511; Winslow v. Insurance Co., 4 Metc. 306. I will advise that the injunction be made perpetual. The complainant is entitled to his costs.