Broaddus v. Smith , 121 Ala. 335 ( 1898 )

DOWDELL, J.

— Under the undisputed evidence in this case the question of fixtures vel non, depending merely upon the intention of parties as implied from the nature and purpose of the article affixed to the realty, or from the conduct of the parties before and subsequent to affixing, does not arise.. Nor is there any question of intervening rights of innocent third parties. The evidence without conflict shows that there was an express agreement or contract between Reeder the lessor and owner of the building, and the Alabama Banking and Trust Co. the lessee, that Reeder would construct a brick vault inside the leased building, and the Banking Co. would furnish the two vault doors and iron partition, the property for the conversion of which this suit is brought, and that the said doors and partition should remain the property of the Banking Co. with the right of removal at the termination of the lease. This contract was oral, but being made with reference to personal property, was not offensive to the statute of frauds. Harris v. Powers, 57 Ala. 139; Foster v. Mabe, 4 Ala. 402.

By express contract between the parties the nature and status of the chattel as personal property was preserved and retained. That it was competent for the parties to contract to this end, we think there can be no doubt. Nothing, perhaps, could be considered in its character more permanent, and more of a fixture, and as forming a part of the realty, than a house or building erected .on the land, and yet a house may by contract of parties become a chattel with right of removal. See Harris v. Powers, supra; Foster v. Mabe, supra; also Powers v. Harris, 68 Ala, 410. There is no evidence ip this case that tlie removal of tlie vault doors and iron partition would have effected any injury or damage to tlie building so as to impair tlie security of Wheelock’s mortgage, which was taken upon the building prior to the construction of the vault within the building.

The vault doors and iron partition remaining personal property by the terms of agreement between Reeder and the Banking Co. were subject to levy and sale undel* execution against the Banking Co.'with the right of removal in the purchaser at execution sale, upon the termination of the lease. While a party entering to remove after a reasonable time may be guilty of a technical trespass, yet his delay short of the statutory bar will not deprive him of his property right, or right of action for a conversion.—Dame v. Dame, 38 N. H. 429; Holt v. Stratton Mills, 54 N. H. 109; Davis v. Emory, 61 Maine 140.

The following propositions seem to be supported by the weight of authorities in well considered cases:

1st. Where the owner of real estate contracts or agrees with a tenant that the tenant may erect or affix anything on the realty, and that the thing so affixed shall remain the property of the tenant and be removed by him, that such article never becomes a fixture, but remains personal property and the property of the tenant, and may be removed by him, just as any other article of personal property left by him on the land unattached to the realty.

2nd.. Such contract or agreement may be either oral or in writing.

3d. Such property being personal property is subject to execution against the tenant the same as any other personal property of the tenant, and may likewise be the subject of conversion.

4th. A prior mortgagee of the real estate acquires no interest in the chattel attached, subject, however, to the limitations, that the mortgagor and tenant may not by their acts do anything to impair the mortgagee’s security. Foster v. Mabe, 4 Ala. 402; Harris v. Powers, 57 Ala. 139; Powers v. Harris, 68 Ala. 410; Chalifoux & Co. v. Potter, 113 Ala. 215; Ewell on Fixtures, pp. 66, 67, 68; 8 Am. & Eng. Ency. Law, pp. 45, 61; Mott v. Palmer, 1 N. Y. 564; Stout v. Stoppel, 14 N. W. Rep. 268; Manwaring v. Jenison, 27 N.W. Rep. 899, s. c. 61 Mich. 117; Tift v. Horton, 53 N. Y. 377; Ship Canal & R’y Co. v. McCann, 48 N. W. Rep. 692, s. c. 86 Mich. 106.

It was competent to oiler parol evidence for the purpose of identifying the two vault doors and iron partition as being the same property described in the sheriff’s 'return on the execution as “two doors and frames.” This was not showing a levy by parol, but simply identifying the property contained in the levy.-Deloach v. Robins, 102 Ala. 288; Webb v. Bumpass, 9 Port. 201; Swann’s Lessee v. Parker, 27 Am. Dec. 522, note p. 524.

The case was tried by the court without a jury, and the judgment rendered was for $Í38. The estimates of valuation on the property by the testimony ranged from 8100 to $150. The judgment was not unwarranted by the proof.

Entertaining the views above expressed we find no-reversible error in the record, and the judgment of the circuit court must be affirmed.