Frankland v. Moulton

5 Wis. 1

• Court: Wisconsin Supreme Court
• Decided: July 1, 1856
• Status: Published

Opinion

By the Court,

Whitoít, C. J.

Admitting; as is contended by tbe counsel for complainants, that tbe sale of tbe engine, boilers, &c., to Moulton and Eisb was not perfected until tbey were placed in tbe mill, and that tbe chattel mortgage was executed by Moulton and Eisb to tbe complainants at tbe same time that tbe title vested in tbem by tbe sale; and admitting, further, as is also claimed by tbe complainants, that tbe property is of tbe kind that when annexed to tbe freehold, is denominated fixtures, such as, between landlord and tenant, would be subject to removal by tbe latter during bis term, if annexed by him, bow stands tbe case in relation to tbe prior equitable mortgagee, or owner in fee ?

Admitting that Salena Moulton is only tbe equitable mortgagee, and not tbe owner in fee, we think it clear, from tbe authorities, that if tbe mortgagors, Moulton and Eisb, bad placed tbe fixtures in tbe mill, and bad owned them, tbey could not have removed tbem; for tbe reason, that as between tbe mortgagor and mortgagee tbey became a part of tbe freehold. Winslow vs. Merchants' Insurance Co., 4 Met. R. 306; Butler vs. Page, 7 Id. 40 ; Carless vs. McLagan, 29 Maine R. 115.

Could the complainants do it ? We think not. The learned judge, wbo decided the case at tbe circuit, says, in tbe written opinion which be gave: “ I am inclined to bold that, as to tbe property mentioned in tbe chattel mortgage, tbe plaintiffs, under tbe clause in the chattel mortgage authorizing tbem to enter upon the realty and remove tbe property upon default, stand in relation to Moulton and Eisb as tenants, so far as to enable tbem to enter and make tbe severance of the fixtures; that at all events it amounted to a license which equity would enforce as against them. But how does this affect the jjrior mortgagee of the realty ? If Moulton and Fish, as the equitable owners of the fee (subject to the mortgages), should sub-let to a tenant, the fixtures erected by the tenant would not, in my opinion, become attached to the realty, so as to subject them to those mortgages existing before they were affixed, at all events, till after a foreclosure, with notice to the tenant of such foreclosure, by being made a party to the suit, or by notice published under the statute, that he might be enabled to remove his propert}'. No principle of equity would allow the lessor, by his act of surrender, to defraud the tenant of his property by putting an end to the term. There should-be a' foreclosure in such a manner as to cut off the equity of redemption. The ground, alone, upon which the doctrine can be maintained that such fixtures, annexed by the mortgagor, are subject to a prior mortgage of the realty, is, that he, at the time of such annexation of the fixtures, is the owner of the fixtures.”

We cannot concur in the opinion of the learned judge. Admitting that the complainants may be regarded as the tenants of the mortgagors, Moulton and Eish (which seems somewhat doubtful), still as Moulton and Fish had no right to remove the fixtures, we do not see how they could confer any such right upon their tenants; they could give to the complainants no greater rights than they possessed themselves.

Nor are we able to agree with the learned judge in holding that “ the ground alone upon which the doctrine can be maintained that fixtures annexed by the mortgagor are subject to a prior mortgage of the realty, is, that he, at the time of such annexation of the fixtures, is the owner of the fixtures.”

We do not intend to discuss the question as to the effect of the annexation of such property to the realty by a mortgagor who has obtained possession of it by a bailment, and who makes the annexation in fraud of the bailor, as no such question arises in the case. But we think it clear that if the mortgagor should annex such property, without being the owner of it, with the consent and approbation of the owner, the consequences would be the same as though the mortgagor was its owner.

In tbe case before ns it can make no difference whether we consider the sale of the engine to Moulton and Fish as perfect, so as to vest the. title in them before ..the annexation, or not until afterwards. In the former case the act of annexing it would be their act, but with the consent, approbation and assistance of the complainants, through their agent, Baker; and in the latter the act would be that of the complainants themselves, but with the consent and approbation of Moulton and Fish, the mortgagors. In either case we think the chattel mortgage of Moulton and Fish gave no right to the property as against the mortgagee, or owner in fee of the realty. Fryatt vs. Sullivan Co., 5 Hill, 116.

Decree reversed, with costs.