Home Owners' Loan Corp. v. Gotwals

PER CURIAM. The Home Owners’ Loan Corporation brought this action in claim and delivery against Amos Gotwals and Martha E. Gotwals to recover possession of a cupboard which had been installed in a dwelling owned by them, but subsequently conveyed to the plaintiff. The deed was in the usual form, and made no reference to the cupboard. Defendants removed from the dwelling the cupboard, claiming that it was personal property by reason of an agreement entered into between the defendants and an agent of the plaintiff prior to the execution and delivery of the deed. Defendants testified that at the time of the execution of the deed a lease was given by the plaintiff to the defendants as part consideration for the deed and that the matter of the removal of the cupboard was discussed and it was agreed that it belonged to the defendants and that they could detach this fixture during their occupancy of the premises. This testimony was denied by the plaintiff, but the issues were found in favor of the defendants. Plaintiff objected to the introduction of testimony with reference to the agreement, moved for a directed verdict, and excepted to the instructions of the court on the ground that such an agreement would violate the statute of frauds. The question to be decided is whether this was a contract within the terms of that statute. The question whether the so-called parol evidence rule would apply is not involved. Defendant Martha E. Gotwals was asked: “Q. Was there any conversation with Mr. Ochsner before the deed was signed?” “Q. You may state that conversation.” The court overruled the following objection by counsel: “Objected to if it has any bearing on the severance of this cupboard for the reason that it is an attempt- to establish a parol contract in violation of the statute of frauds, .being an attempt to *581 transfer an interest in real property by parol contract.” The same objection' and ruling were made with reference to the testimony of Amos Gotwals. Fixtures may become personal property by agreement. Myrick v. Bill et al., 3 Dak. 284, 17 N. W. 268; see also Curran v. Curran, 67 S. D. 119, 289 N. W. 418. The cupboard was not such an inseparable part of the house that an agreement 'that it be given the legal character of personal property could not be made, and it becomes unnecessary to determine the limitations, if any, to this doctrine that parties may make an agreement to give to property annexed to realty the legal character of personalty. The agreement in question did not involve a transfer of an interest in land. At a time when the defendants were owners of the premises, the parties agreed that the cupboard should be reimpressed with the character of personalty, and because such agreement does not constitute a transfer of real property it is not within the ambit of the statute of frauds. SDC 10.0605; 2 Tiffany, Real Property, 3rd Ed., 621. The Judgment appealed from is affirmed. ROBERTS, RUDOLPH, and SMITH, JJ., concur. POLLEY, P.J., and WARREN, J., dissent.