Globe Marble Mills Company v. . Quinn

Andrews, J. Assuming that there Avas such an annexation of the machinery placed by the plaintiff in the mill, on the premises hoav OAvmed by the defendant, as Avould, Avithin the general rule of kuv, and as between vendor and vendee, make it a part of the realty, the fact that -the plaintiff was lessee at the time the annexation Avas made, preserved its character as personal property, and the lessee could Inwc removed it at any time during the existence of the tenancy. The defendant, Avho has derived title to the real estate under a mortgage executed by the lessor, subsequent to the *26 lease, and while the tenancy was subsisting, occupies the position of the lessor; and unless the plaintiff, by some act or omission after the mortgage was executed, has lost the right to treat the machinery as personal propr erty, so that it passed to the purchaser, on the foreclosure, as a part of the realty, the right of action is maintained. (Molt v. Palmer, 1 N. Y., 564; Ford v. Cobb, 20 id., 344; Tifft v. Horton, 53 id., 377.) The conversion of the machinery from personal to real property is claimed to have resulted, from the purchase by and the conveyance to the plaintiff of the fee of the land, under the provisions of the lease, after the execution of the mortgage and prior to the foreclosure. The estate for years merged in the fee. As a consequence -of the union of the two estates in the same person, the lesser estate was, by the technical but well-settled rule of the common law, extinguished. But the consequence claimed, that the machinery became eo instanti by operation of law, a part of the realty, upon the acquisition by the plaintiff of the fee of the laud to which tho machinery was attached, does not, we think, follow. The estate which tho plaintiff had as lessee merged in the estate in fee. But the ownership of the chattels, which was vested in tho plaintiff before tho conveyance of tho land, was separate from and independent of its interest under tho lease, and was not derived from tho lessor. The chattels were not a part of the inheritance. This ownership was not merged, because it was not an interest carved out of the fee; and the doctrine of merger does not apply. If the plaintiff, after it acquired the fee, had mortgaged or conveyed the land, all that was comprehended within the designation of land would pass, and quite a different question would be presented. In this case, the express and presumed intention of the plaintiff, when tho machinery was put into the mill, was that it should remain personal property. There is nothing to indicate a change of intention afterwards. Tho plaintiff executed a chattel *27 mortgage upon it, and at the sale under the foreclosure gave notice that it claimed it as personal property. W e think it was not incorporated into and did not become a part of the realty, as a legal consequence of the acquisition of the fed, in the absence of any evidence of intention on the part of the plaintiff that the character of the property should be changed. The fact that the property, when conveyed to the plaintiff, was subject to a mortgage, may have constituted a reason why the plaintiff should desire to preserve its original character; but, without this, the mere absence of motive to keep it separate from the realty does not, we think, warrant the conclusion that it became, as between these parties, part of the land. The plaintiff was not in default for not removing the machinery. The tenancy had expired before the sale under the mortgage, but the plaintiff had become the owner of the land; and, by the stipulation made with the original purchaser bn the mortgage sale, the plaintiff had the right to remove any personal property on the premises, within thirty days thereafter. This time had not expired when the conversion in question took place. The judgment should be affirmed. All concur. Judgment affirmed,