Bush v. Havird

AILSHIE, J. In this case the lessees of a saloon building in Boise City placed the usual bar fixtures, ice-chest, etc., in the building, attaching them to the same with screws, and also put in electric chandeliers and linoleum on the floor, and such other fixtures as are usually found in such places. Some time afterward the tenant executed to one Poole a chattel mortgage on all this property as security for the payment of a promissory note in the sum of $300. The mortgage was executed on the eighteenth day of February, 1905. The tenant neglected and refused to pay his rent as provided for in the lease, and on the thirteenth day of June, 1905, the landlord, the plaintiff in this case, commenced an action for the sum of $85 rent due, and for treble damages for detention of the premises and for restitution thereof. The trial resulted in a judgment in favor of the plaintiff for rent and treble damages and the restitution of the premises, and on the seventeenth day of June, 1905, the sheriff evicted the tenant and placed the plaintiff in possession. The tenant does not appear to have claimed, or sought to remove, any of the fixtures he had placed in the building, nor did the sheriff remove them, nor does any demand appear to have ever been made for them by the tenant. On the first day of May, 1905,. the mortgagee, Poole, sold and assigned his note and mortgage to the defendants, B. H. Coleman & Company, and on the fifth day of July, Coleman & Company commenced proceedings before the sheriff for the foreclosure of their mortgage upon the fixtures. The sheriff duly and regularly served notice of the foreclosure proceedings, and on the eighth day of July, 1905, demanded of the plaintiff the possession of the property described in the mortgage, and that she deliver to him the key to the premises that he might remove the property therefrom. The plaintiff refused to deliver up possession of the property or to surrender the key to the premises, and the sheriff thereupon, under direction of the owners [356] and holders of the mortgage, broke open and forcibly entered the building and removed all of the property therefrom. The present case was commenced.by the landlord against the sheriff and the assignees of the mortgage to recover judgment against them for the value of the property forcibly removed by them from the saloon building after the expiration of the term of the tenant and after his eviction under judgment and process from the proper court. The property removed by the sheriff from the saloon building under the foreclosure proceedings was, undoubtedly, “trade fixtures,” except the curtain, which was a mere piece of personal property. (Bronson on Fixtures, sec. 33b, pp. 186-189; 19 Cyc. 1065; 13 Am. & Eng. Ency. of Law, 2d ed., 642.) Being that class of property commonly known and designated as trade fixtures, and being common to and used in the saloon business, the tenant was entitled to remove it at any time prior to the termination of his tenancy. Section 2882, Bevised Statutes, provides as follows: “A tenant may remove from the demised premises, any time during the continuance of his term, anything affixed thereto for the purposes of trade, manufacture, ornament, or domestic use, if the removal can be effected without injury to the premises, unless the thing has, by the manner in which it is affixed, become an integral part of the premises.” This statute clearly provides that the tenant may remove such fixtures during the continuance of his term, and is equally an implied prohibition against a removal at any time after the expiration of the term. It is the rule, however, even in the absence of a statute, by an almost unbroken line of authorities, that trade fixtures must be removed by the tenant prior to his surrender of possession to the landlord, and that if he fails to do so, and there is no agreement to the contrary, the right of the tenant to sever the property from the realty will be lost by him. (Taylor on Landlord and Tenant, 9th ed., sec. 551; Wood on Landlord and Tenant, 2d ed., sec. 529; note to Holmes v. Tremper, 11 Am. Dec. 241; Merritt v. Judd, 14 Cal. 60. See discussion in Brown v. Reno Elec. Light & Power Co., 55 Fed. 229.) [357] In the ease at bar it is clear to us, as above stated, that the property was “trade fixtures” such as the tenant might remove at any time prior to the surrender of possession. It is equally clear that when he surrendered up the possession— or, as in this case, having committed a breach of the lease and refused to surrender possession, the landlord securing his eviction by legal process, and the tenant not taking with him the property that he was entitled to remove during his term, and having made no claim or demand for the property at the time — he lost his right to sever the same and remove it, as well as lost the right to re-enter the premises for such purpose or any other purpose. The only further question left for our determination is: Did the mortgagee or his assignees acquire any'greater or superior rights to those of the tenant or mortgagor? We think there can be but one answer to that question. When the mortgagee took a mortgage on this property he took it subject to all the restrictions placed by law upon the tenant, who was the mortgagor, and he could acquire no rights greater than or superior to those of his mortgagor. (Sweet v. Myers, 3 S. Dak. 324, 53 N. W. 187; Free v. Stuart, 39 Neb. 220, 57 N. W. 991; Fuller v. Brownell, 48 Neb. 145, 67 N. W. 6; Talbot v. Whipple, 14 Allen (Mass.), 177; 13 Am. & Eng. Ency of Law, 2d ed., 653.) When the tenant abandoned his right of removing this property and lost the possession and right to re-enter, that disability extended to his mortgagee with equal force and effect. The law will neither impose upon the landlord a duty nor necessity of either housing or taking eare of the fixtures which his tenant leaves behind after his term has expired. Neither will the law permit the tenant nor anyone claiming under him, to re-enter the premises, for the reason that to do so would encourage breaches of the peace, and would in many eases hazard and impair the landlord’s rights of leasing the premises to another tenant, and lessen the full and free enjoyment of those premises by such tenant. The judgment must be reversed, and it is so ordered, and the cause is remanded to the trial court, with direction to [358] enter judgment in favor of plaintiff for the value of the fixtures wrongfully and unlawfully removed and converted. Costs awarded in favor of appellant. (July 9, 1906.) Stockslager, C. J., and Sullivan, J., concur.