Dixson v. Ladd

WHITING, P. J. This is an action of replevin brought in justice court, and seeking to recover the possession of one certain roll-top desk. Plaintiff claims to be the owner under and by virtue of a purchase upon foreclosure of a chattel mortgage, which covered “that certain elevator together with the scales, bins, machinery ,and other appurtenances thereunto belonging, located. * * Defendant claims to be the owner by purchase from the mortgagor, and the evidence reveals the fact that, whether the owner or not, he was, at the time action was brought, holding under possession received byr delivery of the property to him by the mortgagor. Judgments in justice court and upon a new trial in circuit court were in favor of the defendant. This appeal is from the latter judgment,' and from, an order denying a new trial. [1] The appellant has assigned numerous errors based upon the rulings of the court in admitting and rejecting evidence, and upon certain instructions given the jury. Appellant has no right [167] to this property unless he acquired it by the purchase on foreclosure. There is no claim that the desk in question was sold or offered for sale separate from the elevator. There was no evidence received or offered showing that, upon the foreclosure, there was any representation or claim that the mortgage covered the desk, or showing any fact that would estop either the mortgagor or respondent from claiming that title to -the desk did not pass under the foreclosure. There was no evidence offered, other -than the mortgage itself, that would tend to show in the slightest degree that the parties to the mortgage intended the same to cover the desk. There was, however, evidence received over appellant’s objection showing that the parties did not intend the mortgage to cover such desk. The instructions complained of were based upon this evidence that was received over appellant’s objection. There was no evidence offered or received which bore upon the question of whether or not the desk was an appurtenance to the elevator, except evidence of the fact that the mortgagor had it to use in its office in the elevator. It therefore follows that no matter how erroneous the rulings or instructions of the court may have been, they were errors without prejudice, unless by the use of the words “other appurtenances,” and proof that the desk was used in the office of the elevator, it appeared that the desk was covered by the mortgage, as otherwise the court would have been bound to direct a verdict in favor of respondent if one had been requested. [2] The word “appurtenance” is commonly used in connection with real property, and its meaning, when used in a transfer of a building which chances to> be real property, would be no different than when the said term is used in a transfer of a ’building which chances to be personal property; that is, all other things being the same, whatever would be appurtenant to a building which is real estate would .also be appurtenant to the same building if, owing to the fact that such building stood upon land not owned by the owner thereof, it chanced to' be personal property. The term “appurtenance” is commonly confined in law to those purely incorporeal hereditaments that are commonly annexed to lands or to houses, and, strictly speaking, anything corporeal cannot properly become an “appurtenance.” The use of the term “appurtenance” as a part of the description in a transfer [168] is usually mere surplusage, as anything which in the true and strict sense of the word “appurtenance” would be held to be appurtenant to the principal thing sold would pass under a trans- • fer merely describing the principal thing. But, as was well said in the case of Frey v. Drahos, 6 Neb. 1, 39 Am. Rep. 353: “It is, however, doubtless true that the word is frequently used in a more enlarged and comprehensive sense, and when it can be gathered from all the' attendant circumstances that it was so understood and used -by the parties, a corresponding effect should be given to it in the interpretation of a contract.” Thus it has been held that, under the term “appurtenance,” corporeal articles of personal property passed under conveyance of land or building's. But it is not all property situate upon land or within buildings that will pass as an “appurtenance” to such land or building; it must still be a thing which in its nature agrees with the use to which the building is put; in other words, it must agree in its nature with the thing whereunto it is appurtenant. Thus, in the case of a gram elevator, those tools and machinery therein contained and used, which from their nature are proper and convenient to be used in connection with the buildingdn the handling of grain in said elevator might in a proper case be held to be “appurtenant” to such building; it could not, however, be held to cover an article of personal property having nothing to do with the handling of grain — the purpose for which the building was • constructed. 2 Am. & Eng. Ency. Law 520; 3 Cyc. 565; Jones on Chattel Mortgages (5th Ed.) § 136; Ottumwa Woolen Mill Co. v. Hawley, 44 Iowa, 57, 24 Am. Rep. 720; Frey v Drahos, 6 Neb. 1, 29 Am. Rep. 355; Riddle v. Littlefield, 53 N. H. 503, 16 Am. Rep. 388. It is therefore clear that the term “appurtenance” did not cover the roll-top desk. [3] Appellant must recover, if at all, upon the strength of his own title. If he procured no title or right of possession, by virtue of the purchase on the foreclosure, then, as against the respondent, to whom possession was delivered by. the elevator corporation, appellant could have no rights; .and this regardless of whether or not the respondent was the owner of the property. [4] Appellant has urg'ed that, for purpose of foreclosure' the mortgagor allowed the desk to be turned over to the mortgagee along with the elevator, and that this delivery of possession cured [169] an)" defect in description. There was no evidence to support any such contention. From its nature the elevator was incapable of seizure and removal by the sheriff. He did not remove the desk therefrom. The keys of the elevator were held by respondent for several days after the sale. The fact that the desk was allowed to remain in the building and was therein at time of sale, did not cause it to pass under the foreclosure any more than would wheat or other grain therein have passed. The judgment and order are affirmed.