Muehling v. Muehling

Opinion by Mr. Justice McCollum, The question to be determined on this appeal is whether the hosiery knitters, ribbers, steam press and dynamo purchased for and placed in the lmitting mill, by the owners thereof, were intended by them as component parts of their factory, and subject to the lien of the mortgage upon it, or as personalty subject to removal by them at their pleasure and against the protest of their mortgagee. The learned auditor to whom the question was referred found as a fact that it was their intention in placing this machinery in the mill to place it there as fixtures and a constituent part of their factory. This finding was approved by the learned court below, and, if there was a sufficient warrant for it in the evidence, we cannot reverse it. We have carefully read and considered all the evidence oral and documentary, and our conclusion from it accords with the finding in question. The agreement of September 11, 1889, under which the money for the erection of the factory was furnished, and in pursuance of which the factory was mortgaged, contained a requirement by the mortgagee and a promise by the mortgagors which bound the latter to place in the factory for the proper operation of it, machinery worth at least 110,000, and to maintain an adequate insurance thereon for the protection [491] of the former. It seems to us that this agreement is in clear accord with the view that it was the intention of the mortgagors that all the machinery employed in the operation of the factory should constitute a component part of it. The manner in which the machinery was connected with the factory and the fact that it was deemed essential to the proper performance of the work done there are circumstances corroborative of this view. The mortgage was executed in conformity with the agreement, and the parties to it seem to have understood that it included the machinery as well as the buildings with which it was connected. When Johnson withdrew from the partnership of Muehling & Johnson he agreed to convey to Muehling his interest in the real estate, buildings, machinery and fixtures connected therewith, subject to the mortgage. This agreement shows that he considered the machinery and fixtures as real estate on which the mortgage was a lien. The learned counsel for the appellant appear to concede that the machinery in the factory when the mortgage was executed was included in and bound by the latter, but they claim that the machinery in question was put in the factory subsequent to the execution of the mortgage, and is not subject to the lien of it. As sustaining this view they cite Tillman v. DeLacy, 80 Ala. 103, and Clare v. Lambert, 78 Ky. 224. These cases are referred to as authority for the proposition that “ where the chattel is annexed after giving the mortgage, and is of doubtful character, there must be stronger evidence of intention to make a permanent accession to the freehold than if it were annexed prior to or at the time of giving the mortgage.” ' But this proposition, if sustained by the cases cited, furnishes no ground for reversing the finding in question, because the evidence to support it is ample. Besides, our own cases seem to hold a different view. In Roberts v. The Dauphin Deposit Bank, 19 Pa. 71, a steam engine and boilers were detached from a property covered by a mortgage, and it was sought to justify the severance on the ground that they were attached after the property was mortgaged, and it was held that “ though the engine and boilers were put up after the mortgage to the plaintiff was given they constituted a part of the mortgage security, and they were not liable to removal by the mortgagor or her assigns if such removal was injurious to the mortgagee, who has a right to benefit from any appreciation of the mortgaged [492] premises arising from any cause.” See also on this point Morris’s Appeal, 88 Pa. 368. Decree affirmed and appeal dismissed, the costs to be paid by the appellant.