Kaestner v. Day

Me. Justice Habkeb delivebbb the opinion of the Ooubt. The only serious question involved in this controversy is whether the engine and boilers purchased of appellants by Hyndshaw &Rosenstoek were so set as to become part of the realty. It may be conceded that as between appellants and the insolvents, the former were the owners of the property an til paid for, and that the assignee took the property subject to all equities, liens and incumbrances which existed against the same in the hands of the insolvents. There is no doubt that the parties to the contract of purchase could agree among themselves that the engine and boiler should be treated as personalty, and ownership remain with the vendors until they were paid for; but their agreement could not change the character of the property, so' far as third parties were concerned. Dobschuetz v. Holliday, 82 Ill. 371; Fifield et al. v. Farmers Nat. Bank et al., 148 Ill. 163; Cross v. Weare Commission Co., 153 Ill. 499. In. addition to the fact that the lease executed by the owner, Bonfield, and under which the insolvents were operating the plant, expressly provided that all new and substituted machinery should become “ part of the demised property ” and be surrendered to the owner on the termination of the lease, the evidence shows that the engine and boilers claimed by appellants were placed within one of the buildings on brick and stone foundations. The boilers were placed on foundations of brick work into the ground, and arched over with brick walls eight feet high laid in mortar. On these walls or arches rested posts supporting the roof of the building. The engine was placed upon a solid stone or concrete foundation sunk four feet and a half in the ground, with iron bolts imbedded in it, and the engine through holes in its bed was bolted to the foundation. A line of shafting was affixed to the engine room by bolts and screws to the walls and extended to the machine room, with pulleys, and from the driving wheel of the engine and belt post to a pulley on the line of shafting, and belts went from the pulleys in the machine room to the mills, thereby driving the machinery. A steam supply pipe passed from the boilers to the engine, connecting them, and steam pipes attached to the building passed from the boil ere to the drying - machinery in the dry house. This was the condition of the property at the time of the assignment. The evidence also shows that in order to remove the engine and boilers, it would necessitate the breaking of a hole in the brick wall of the bnilding six or seven feet in diameter. The proofs clearly show annexation of the property in question to the realty, appropriation and adaptation to the use and purpose of that part of the realty with which it is connected, and intention on the part of the party making the annexation to make it a permanent accession to the freehold. They bring the case within the rule stated by Mr. Ewell,- in his excellent work on fixtures, page 22. This case is much like the one reviewed by the court in Fifield et al. v. Farmers Nat. Bank, 47 App. 118, and afterward considered by our Supreme Court, in 148 Ill. 163. We refer to the discussion of the principles involved in the opinions filed in that case, in support of our conclusion that the County Court in this case properly dismissed appellants’ petition. Order affirmed.