Nelson v. Howison , 122 Ala. 573 ( 1898 )

SHARPE, J.

— This action is in detinue, and the complaint describes the property recovered in the judgment appealed from as one engine and one boiler. Such description tested by former adjudications of this court Avas sufficiently definite and the demurrer to the complaint was properly overruled. — Haynes v. Crutchfield, 7 Ala. 189; Thompson v. Pearce, 49 Ala. 210.

The plaintiff claims through an unsatisfied chattel mortgage executed to him by John Eharker in 1884 to secure a note given for the purchase price of the boiler in suit, and the mortgage included both the boiler and the engine sued for. The description of the engine and boiler contained in the mortgage was sufficient for the purpose of the conveyance, and the objection to its admission in evidence was not well taken.

The evidence tended to sIioav that Avhen the mortgage Avas given Eharker had the engine at a brick yard he was operating on the land of his sister, Mrs. Hoskins, Avith whom he resided. Subsequently the possession of the land and of the brick-making machinery erected on it passed from Mrs. Hoskins to one Nabors and from Nabors to the Nelson Fire Brick Co., a partnership composed of appellant and his sister-in-law. Mrs. Hoskins, Nabors and John Eharker all died before the trial in the circuit court. The plaintiff testified, against appellant’s objection, that when the mortgage was about to be taken a question arose as to whether Mrs. Hoskins had any interest in the machinery to be included in it, whereupon she was called upon by the parties to the transaction for information concerning her interest, and in response she stated that she owned the land but not the, machinery. The proof nowhere shows that Mrs. Hoskins’ estate is interested in the result of this suit, and the objection to such statement based on that ground Avas Avithout merit. Butler v. Jones, 80 Ala. 436; Howle v. Edwards, 97 Ala. 649. The rule which rejects parties as witnesses to statements of persons since deceased applies when the statements may contribute to a result of the suit which diminishes the estate left at the death of the decedent, Avhether it be in abeyance or in the hands of an appointed representative or of one claiming such estate in legal succession. It does not apply for the protection of those Avho though claiming title through tiie decedent, derive such claim from transactions inter vivos.

The main controversy is as to Avhether the engine and boiler are so attached to the realty as to become part of it, or are removable fixtures — a question depending largely in such cases upon the intention Avith which they Avere erected upon the land. The statement of Mrs. Hos-kins was competent as a part of the res gestae upon the fact of such intention and also npon the fact of OAvnership of the machinery in connection Avith the proof of her possession of the premises; and it could also be looked to by the jury to infer an understanding between her- and the parties to the mortgage Avhich might estop her from afterwards claiming the machinery as part of the realty. — Powers v. Harris, 68 Ala. 409. Such estoppel could also extend to those holding subsequently unless by relation equivalent to that of a bona -fide purchaser.

Tlie proof shows that at the beginning of the suit the brick yard, including the engine and boiler, was being operated by the Nelson Fire Brick Company through a manager employed by it; that defendant was the only male member of the firm and that he upon occasions was present upon and gave orders about the premises. From such facts the jury could find that defendant had the immediately controlling power over the property, which would be such possession as would, if wrongful, authorize a suit in detinue. — Henderson v. Fitts, 58 Ala. 590; Foster v. Chamberlain, 41 Ala. 167; Walker v. Fenner, 20 Ala. 192. Whether such control was for his own purposes or in behalf of his firm was immaterial, if it was exercised in wrongfully detaining property to which the plaintiff was entitled. — Smith v. Wiggins, 3 Stew. 221.

Charges, 1, 3, 5 and 6 requested by defendant were properly refused as being argumentative, and calculated to mislead the jury into the belief that the possession of the partnership was as matter of law inconsistent with the possession and control of one of its members, which is not true. Charge No. 2 requested was incorrect. Abandonment by the mortgagor of the mortgaged property ought not to and does not prejudice the rights of the mortgagee.

The rule applicable to landlord and tenant that fixtures must be removed if at all during the tenant’s term is abstract here, since the proof fails to show Avhat possessory interest if any in the land was had by John Eharker. A witness stated that he resided Avith his sister on the land and was operating a brick yard there “under an agreement and by permission of said Amelia Hoskins and as her tenant, and in subordination of her title and possession,” which si vows no more than a mere permissive user subject to the continued possession of Mr. Hoskins.

The boiler Avas set up for use upon a foundation of brick extending into the earth, the brick being built up from the outer edge of the foundation so as to form a jacket reaching nearly to the top of the boiler. The engine was also erected upon and bolted to a brick foundation extending into the ground. Both were enclosed by a house so built that part of it -would have to be taken away to allow the removal from it of the engine and boiler. In view of their situation and of the circumstances under which they were so placed the question as to whether they are removable fixtures was one of mixed law and fact, falling within the class proper to be determined by the jury as were the other questions in the case including that of the title claimed by adverse possession.

Finding no error in the record the judgment appealed from must be affirmed.