Opinion
09-22-1937
PROVIDENT BUILDING & LOAN ASS'N OF PASSAIC COUNTY v. WILLIAM DAY SONS REALTY CO., Inc., et al.
Cohn & Kohlreiter, of Paterson, for complainant. Horton & Tilt, of Paterson, for defendant Godfrey, Keeler Co., Inc.
Syllabus by the Court.
A boiler installed in a factory upon conditional bill of sale held severable without material injury to the freehold and not subject to a prior mortgage on the freehold.
Foreclosure suit by the Provident Building & Loan Association of Passaic County against William Day Sons Realty Company, Incorporated, and the Godfrey, Keeler Company, Incorporated.
Decree dismissing bill as to the Godfrey, Keeler Company, Incorporated, and establishing its lien under conditional bill of sale.
Cohn & Kohlreiter, of Paterson, for complainant. Horton & Tilt, of Paterson, for defendant Godfrey, Keeler Co., Inc.
LEWIS, Vice Chancellor.
In this foreclosure suit, the sole question is as to whether a certain boiler on the premises constitutes a part of the realty so as to be subject to the mortgage. Defendant Godfrey, Keeler Co., Inc., interposed an answer claiming that the boiler remained personal property and was subject to the lien of a conditional bill of sale duly recorded to it. At the hearing it appeared that the boiler was what is known as a portable boiler and could be removed from the premises, consisting of a factory building, through a doorway already existing and without any substantial injury to the factory building.
Complainant's mortgage was executed prior to the installation of the boiler, and therefore there can be no estoppel by reason of any possible reliance upon the boiler as being security for the loan.
Upon the facts shown at the hearing, the case comes clearly within the well-settled principle that personal property, such as machinery and equipment, installed under a conditional bill of sale, where it can be readily removed without any substantial injuries to the premises, does not become part of the realty, and therefore is free from the lien of the mortgage upon the realty. Reliance Building & Loan Association v. Purifoy, 111 N.J.Eq. 575, 163 A. 151.
A decree will be advised dismissing the bill as to Godfrey, Keeler Co., Inc., and establishing its lien under the conditional bill of sale.