Seiberling v. Miller

Mr. Justice Scott delivered the opinion of the court: It is unnessary to determine whether Rouse, Hazard & Go. or William Jack had. the right to sever from the freehold the property involved in this suit. In January, 1899, the Peoria Manufacturing Company succeeded to such rights as Jack had, and entered into a contract with the appellees for the purchase of the real estate on which the property involved was located, and thereafter continued in possession of such real estate under that contract until it made default in payment of installments of the purchase price. It was a vendee in possession and the equitable owner of the real estate. The property in question was at the same time on this real estate and attached to the freehold in the most substantial manner. Much of it could not be removed except by destroying masonry and. cutting through brick walls. The .fiction, based upon an implied condition in the contract between Rouse, Hazard & Co. and Theodore J. Miller, whereby it is claimed this property had continued to be personal property up to that time, if it ever had any legal existence was then at an end. After the execution of the contract between the Peoria Manufacturing Company and appellees, it is not charged that appellees, who were the vendors, were guilty of any default in the performance of that contract. The situation is no more favorable to appellant than if the Peoria Manufacturing Company had actually placed this property upon and attached it to the freehold under its contract of purchase. The authorities cited by appellant in reference to the right of a vendee to remove improvements of this character placed by him upon the real estate where the vendor fails to perform his contract by conveying the title are not in point so far as this transaction is concerned, for the reason that appellees did not fail or refuse to perform their contract, “Articles annexed or structures erected by "a vendee of land who is in possession by virtue of his contract of purchase but who has not yet obtained title to the premises cannot be removed by him without the consent of the vendor, the presumption being, from his interest under his contract and expectation of acquiring absolute title, that he intended the articles or structures to be part of the land.” 13 Am. & Eng. Ency. of Law, (2d ed.) p. 672; Dooley v. Crist, 25 Ill. 551; Smith v. Moore, 26 id. 392; Ogden v. Stock, 34 id. 522; Salter v. Sample, 71 id. 430. The objections urged to this view are, first, that the alleged contract between appellees and the Peoria Manufacturing Company was improperly admitted in evidence because it does not purport to be signed by that company. The basis of this objection is, that in the signature the letters “Mfg.” appear instead of the word “Manufacturing.” This objection is too technical. The letters are an abbreviation of the word, and are no more subject to criticism than the use of the abbreviation “Co.” for the word “Company.” A further objection to the admission of the contract was, that it is not under the seal of the corporation. This objection is held not well taken in the opinion of this court in B. S. Green Co. v. Blodgett, 159 Ill. 169. It is then said that at the time this contract was made the Peoria Manufacturing Company was in possession of the real estate, and that appellees never had possession and never had title, and could not give possession nor comply with their contract of sale, consequently the contract was without consideration, and void. The answer to this is two-fold: The company was not, in any legal sense of the term, in possession of the real estate. The possession of Rouse, Hazard & Co. was never transferred by it to anyone, nor did Jack transfer any possession of the real estate to the Peoria Manufacturing Company. It is true, he says he had a custodian in possession of the property he purchased; but his possession was in nowise different from that of one who has personal property stored on the real estate and in the building of another. His possession was no more than that of the sheriff, who levied on the property on the theory that it was personal property. He could not be held to be in possession of the real estate by virtue of such a levy. One of the managers of the manufacturing company testified that it was in possession of the real estate for about two years under the contract of purchase, which shows that they were in possession by virtue of that contract. The contract itself provides that if the company fails to make any two of the payments mentioned,, within two years from February 15, 1899, appellees shall have a right to take possession of the premises. It is urged that when Rouse, Hazard & Co. took possession of the real property under its contract it became the equitable owner thereof, and that it, or its trustee in bankruptcy, so continues to the present time, and that consequently the manufacturing company had a right to act on the theory that appellees were not the owners of the real estate, could not convey the title thereto, and that it therefore was under no obligation to perform its contract, and had a right to remove the property involved in this suit. Rouse, Hazard & Co. had a right to bring a suit in equity to compel Theodore J. Miller to convey to it the fee simple title to this property. It also had a right to abandon the possession and equitable ownership, and rely upon a suit at law for damages on the contract with Theodore J. Miller, the performance of which by him was guaranteed by one Constantine and by Seiberling, the appellant herein, neither of whom is shown to be insolvent. Under such circumstances, Rouse, Hazard & Co. would cease to be the equitable owner of the real estate. It is apparent that it did abandon the possession, and under the evidence in this case we cannot hold that it continued to be the equitable owner of the real estate. The record fails to show that appellees could not convey a good title to the manufacturing company. It is said that no forfeiture of this contract with the manufacturing company was declared. That was wholly unnecessary. The question is whether this property became a part of the freehold. It is stipulated that the manufacturing company defaulted in its payments. The possession of the realty was surrendered to appellees. Whether they formally declared a forfeiture is immaterial. Upon the undisputed facts of this case these fixtures are part of the real estate. Six propositions of law were held at the request of appellees. The record does not show any exception to this action of the court, and we are therefore precluded from reviewing it. The propositions submitted by appellant are fourteen in number and occupy seven pages of the abstract. They were all refused. We have carefully examined each. Their number and length forbid a detailed discussion of them in this opinion. It follows from the views which we have above expressed that the first, second, third, fourth, fifth, sixth, ninth, tenth, eleventh and twelfth of these propositions, if they be otherwise correct, are neither of them controlling in this case, and their refusal was therefore not error. The eleventh is also objectionable for the reason it presents a mixed question of law and fact. We regard the seventh, eighth, thirteenth and fourteenth as incorrect statements of the law. The judgment of the Appellate Court will be-affirmed. Judgment affirmed.