Bartlett v. Wood

Barrett, J. The questions in this case arise on exceptions taken by the plaintiff to the judgment against the trustees. There are two subjects of complaint; one that the judgment should have been for the whole year’s rent, as well as for more of the specific chattels held under lease by the trustees ; the other, that the judgment should have been in different form as to the mode of paying the amount found due for rent, and for the property that was purchased by the trustees of the defendant, Wood. I. The same rule is applicable to this as to any other case that comes before this court on éxceptions. Error must be shown by the exceptions or the judgment must stand. We make this remark with particular reference to the point made in argument* as to the rent. We well understand and fully recognize the law by which a lessee may be holden for rent for the full term of his lease, even though the buildings should he destroyed by fire, flood* or tempest before the expiration of the term. But whether he is so holden or not would depend on the specific provisions of the [378] lease. In this case the lease is not before us, nor are its terms stated, except as to the time it was to run, and the rate of the rent to be paid. The lease, as it was shown to the commissioner, did not appear to him to bind the lessees to pay the rent absolutely for the full term. The county court have acted on his finding, and rendered a judgment touching this subject. There is nothing before us to show error in that judgment in this respect, and so of course we do not find any. II. We see no error in regard to the mode prescribed for paying the two hundred and sixty dollars and sixty-three cents. It is directed to be paid in work, as particularly stated in the report* which we understand to mean that it is to be paid in work* according to the terms of the contract between Wood and the trustees. This is the only judgment warranted by the statute^ The trustees cannot be held to pay in any other mode, nor upon any other terms than those provided in the contract under which they purchased and held the property. If there is difficulty or embarrassment in 1-ealizing the fruits of the judgment by the plaintiff', it is his misfortune, arising from the nature of the subject and the state of the statute law. III. Under the decisions in this State, commencing early and now embracing two very fully considered cases of recent date* we are compelled to regard the boring lathe, the engine lathe* the wood turning lathe, the press drill, and the press punch, as being unquestionably personal chattels and subject to attachment and levy of execution as such. We should have as little trouble in so treating the upright saw and the circular saw, were it not for what is said about the mode of their attachment to the building. We understand from the report., that the upright side timbers of the upright saw are framed into the floor by a tenon received into a mortise in the floor, and that this is done for the purpose of holding it steady, to the same intent as might have been accomplished by 'bolts or cleats at the foot of these side timbers. We understand this to have been done, not by way and for the purposes of incorporating the said machine into the building as a part of it, in a similar manner and to the same intent as is done in the case of an ordinary saw mill for sawing logs. The mode in which the frame is fastened overhead shows that the purpose was merely [379] to make a moveable machine .firm for use in that place, which might, on being removed, be as well placed in any other suitable shop, and be fastened and used in a similar way. The mode in which the circular saw is fastened is less like incorporating it with the shop, than is that of the upright saw. The commissioner expressly finds that said machinery could be taken out of the shop without seriously injuring the main part of the building. Independently of the particular manner in which these machines are fastened for use in said shop, it is beyond question that they are mere chattels. That manner of fastening is the only thing shown in’the case that, could operate to change their character. We think, to treat them in view of that manner of fastening, as being a part of the realty, would do violence to the case of Hill v. Wentworth, 28 Vt. 428, and Fullam et al. v. Stearns et al., 30 Vt. 443. We do not propose any further discussion in this case of the law of fixtures. The law as developed, expounded and applied in those cases, would become no clearer, either as to its principles, or its due application, by what might now be said. The articles, now named, being personal chattels and being in the hands of the trustees at the time process was served, Said trustees became chargeable for them by force of the statute, and the expositions thereof by this court in cases that have passed into judgment. As to the engine lathe, of which it appears that the defendant is the owner of an undivided half, nothing in particular need be said. The defendant’s interest in it is subject to the attachment of his creditors. Unless the other joint owner has asserted his right and taken it from the possession of the trustees, it is chargeable with execution in their hands in virtue of the defendant’s interest, the same as any other of the articles. The officer who may have the execution will act under it agreeably to his judgment of his official duty. The trustees will be acquitted by having the article ready for his custody on lawful demand. In case the article has been taken from them by the other joint owner, it will be reasonable to settle any question that may arise in respect thereto, when it shall be legitimately before the court. The claim as to the trip hammer is abandoned by the plaintiff; Upon the facts reported we regard the tire roller as being a tool [380] of the trade of a blacksmith, and therefore exempt from attachment and trustee process. The judgment of the county court being correct as far as it went, is now reversed pro forma, and judgment is here rendered, that the trustees are liable according to the terms of the judgment of the county court, and in addition thereto for the said articles named in said report and above named, to wit, the upright saw, the circular saw, the boring lathe, the engine lathe, the wood turning lathe, the press drill, and the press punch, to be delivered to the officer holding the execution that shall be issued in this case, upon lawful demand made in that behalf, the trustees’ costs in this court aDd also in the county court to be deducted from tbe indebtedness for which said trusteed are adjudged chargeable.