Lewis v. Rosler

Moore, Judge, delivered the opinion of the Court: This proceeding on the part of Lewis, as receiver, against Rosier as sheriff, and Grogan, in whose favor the ft. fa. had issued, is clearly a proceeding auxiliary to the chancery cause of Stribling, trustee, &c., v. Splint Coal Company et al, pending in the circuit court. If Lewis, as receiver, had reason to believe that the property, levied on and about to be sold under the ft. fa. in favor of Grogan, was part of the property which the court had placed in his keeping and control, it was his duty to bring the matter to the attention of the court, and seek [341] its aid in protecting the property; and it was the duty of the court not only to protect the receiver, as its officer acting under its order, but also to protect the property, and enforce its order. Whilst it is perhaps true, that the receiver might have proceeded in some other mode to have brought the sheriff and the execution-creditor before the court, and had them punished for contempt, or might have availed himself of some legal remedy against them, yet he was not bound to stand by and see the property wrested out of his hands merely because he could have legal redress. Being property, as he believed, held by him under the order of the court, and subject to the direction of the court in the chancery suit of Stribling, trustee, &c., v. Splint Coal Company, &c., it was his right to protect it from all attempts to take it out of his possession, by injunction, until the question of its liability to be taken under execution was determined by the court; and this could be done by auxiliary bill, or by petition and motion in the Stribling case. The auxiliary bill, or petition, in this case, sufficiently states the aggressing parties to enable the court to know against whom to specifically award the writ of injunction ; and as Grogan appeared and demurred to and answered the bill, it is plain he was fully notified of the proceeding, and who were the parties intended as defendants by the bill, and had been made parties specially by the order awarding the injunction. The case being auxiliary to the Stribling trustee case, which was still pending, it was not absolutely necessary to have made exhibit in the bill of the order appointing Lewis receiver, because the whole proceeding, in that case, was open to the court's inspection in proceeding against the sheriff and Grogan, for the purpose of seeing whether or not they were violating the order of the court as alleged in the bill. The court did not err in overruling the demurrer. Was the property levied on by the sheriff liable, to be taken under execution ? There is no question that the brass and copper levied on had been, before severance, [342] Par<; °f the Splint Coal Company. The. testimony shows, that the lessee, Job E. Thayer, severed ^ krass an(j COpper from the realty about August, 1877 ; and the order appointing Lewis receiver, shows his appointment was made December 13, 1877. It is, therefore, argued by the learned counsel for appellant, that Lewis had been appointed receiver of the real estate of the Splint Coal Company, and to take charge of same, with its privileges and appurtenances, and to rent the same out, &c., and that, therefore, as the brass and copper had been severed and converted into personalty before the.receiver was appointed, it was liable to the fi. fa. levy, and the receiver was not at any time entitled to possession of them. The order appointing Lewis receiver states: “the court being of opinion that the property of the defendant corporation, the Splint Coal Company, is in danger of loss and misappropriation, it is adjudged, ordered and decreed that C. C. Lewis be, and he is hereby appointed a special receiver of all the real estate, together with all the privileges and franchises appertaining thereto belonging to said Splint Goal Company, situated in the county of Ka-nawha, and State of West Virginia, and that said special receiver do forthwith proceed to take charge of said real estate, together with all the privileges and appurtenances thereto belonging, and rent or lease the same, either as a whole or in separate parcels, and either by private or public letting,” &c. Syllabus i. In Pickerell v. Carson, 8 Ia. 544 ; it was held that the words “fixtures and appurtenances,” have acquired a peculiar and appropriate meaning, and were to be construed according to such meaning, having due reference to the context, and to the connection in which the words are used. The clause in the writing to be construed was: “Did sell and convey to said William C. Carson, the following described premises, to wit: All the fixtures and appurtenances contained in the daguerrean rooms,” in the building, &c. Stockton, J., delivered the opinion, and said : “The controversy between them [343] was whether the word appurtenances embraced the loose, moveable articles oí personal property in the daguerrean rooms of the plaintiffs. So far as such articles of personal property were considered as appurtenances to the daguerrean rooms, and to the business carried on therein by the plaintiffs we think they were to be considered as embraced by the word ‘appurtenances.’ ” In the case before us, the broad language of the order appointing the receiver, viz : “The property, of the defendant corporation, the Splint Coal Company, is in danger of loss and misappropriation, ” would seem, as argued by the learned counsel for the receiver, to “'have reference to such kinds of property.as could be removed, stolen, destroyed or sold, and thereby be in danger of of loss and misappropriation,” and it appears from the testimony that the brass and copper were severed from the realty by Thayer to prevent such loss or misappropriation. But the court has interpreted its .own meaning by declaring in its order perpetuating the injunction, “that, the copper and brass, are part of the property placed in the hands of the plaintiff as special receiver of this Court in the cause of Stribling, trustee, v. Splint Coal Company, et al." SyilabuS2. Although the authorities are in considerable confusion. as to when the severance converts the article into a chattel state, yet the principle seems to be settled, that the act of severance must be done, first, by one having authority or the right to so, and second, that it must be severed with the intention of converting the article into a chattel state. This principle is fully borne out by the authorities cited by the counsel, and is distinctly laid down by Ewell on Fixtures, pp. 43, 44, and sustained by the authorities cited in his notes. Now it appears from the deposition of Thayer, who was lessee of the property and made the severance, what was the intention of the severance. He testifies, as follows: “On the 11th day of February, 1876, I leased from the Splint Coal Company all that property on the south side of the river, including two salt furnaces, for a term [344] of years, which by our agreement I was required to re- " turn to the said company in like condition in which I received innatural wear and tear excepted. At the time I leased the property, I expected to make salt on both furnaces as well as to run the farm. Salt making became so unprofitable that I first abandoned making salt on what is known as the Lorena Salt Furnace, and continued to run the Kenton Furnace at intervals merely to keep it from going into dilapidation. It was expensive to take care of the property on the Lorena Furnace^ and the copper and brass were being stolen, and the only safe way I could keep it was to put it under lock and key, which I did about August, 1877, for the purpose of safe-keeping, or using in manufacturing salt, it being a part of the freehold which I was required to return at the end of the lease. The copper and brass spoken of is just as it was when in use, except it is in the warehouse for safe-keeping until required for use. I mean it is not cut up or disfigured.” Nothing is shown by the record as to Thayer’s authority or right to sever the property, that is, whether it was done with the owner’s consent or not. If done with the owner’s consent it is clear from the testimony that the severance was only temporary and for the purpose of safe-keeping, and was not a severance of that permanent nature as to give the chatel-character. On the other hand, if the severance was done by Thayer without the authority or right to do so, then under the well established principles, the severance could not change the character of the article. I am therefore of opinion, that the brass and copper in this case did not lose its character, as a part of the realty, by the severance; and the circuit court did not err by its order perpetuating the injunction. The decree of the circuit court must be affirmed, with costs and $30.00 damages. The otheR Judges Concurred. Decree Affirmed.