William Christian & Co. v. Bunker

38 Tex. 234

Opinion

Walker, J.

On the thirteenth of June, 1871, Bunker made a conditional purchase from Hoadley of steam engine No. 917. Their contract was made at Lawrence, Massachusetts. The engine was delivered to Bunker in August following, for use, at his mill at Harrisburg, Harris county, Texas. The agreement between Bunker and Hoadley was never recorded.

On the twentieth of June, 1871, Bunker mortgaged his mill and fixtures, with the engine then in the mill, No. 443, to the plaintiffs. The mill itself was not a fixture, the land on which it stood not belonging to Bunker.

The old engine was taken out of the mill, and the new one put in. That the appellants claimed the old engine on the fourteenth of February, 1872, is evidenced by the following instrument:

1 ‘ Mr. • Charles Bunker : You are hereby authorized to make sale of your Hoadley engine, without regard to our lien, by virtue of deed of trust of yourself to J. H. Crosby, trustee, dated November 20, 1871, for saw-mill appurtenances; the proceeds of said sale being paid over to us, and endorsed on your note of that date for $3000.

“ Yours, etc., “Wm. Christian & Co.”

There is a manifest error in date of the deed of trust referred to in this letter. It should be June 20, instead of November. The old engine was sold for $858 — $750 of which was paid over to Christian & Co.

It is now contended by the appellant that the deed of trust to Christian & Co. became a lien on the new engine paramount to any right of Hoadley. This cannot be the case. The new engine was a portable engine. The mill itself was not a fixture to the land, nor did the engine become such. Hoadley’s right to the engine is paramount.

The judgment of the District Court is right, both in law and equity, and is affirmed.

Affirmed.