Grubbs v. Hawes

SAYRE, J. Appellee filed his bill to foreclose a mortgage which conveyed a lot ,in the city of Decatur by descriptive boundaries only. The principal subject of controversy between the parties is whether certain machinery put into a building upon the lot after the execution of the mortgage is to be included in the security. The question is doubtfully raised, but the parties have treated it as properly raised, and since its — 394 — determination will in the end he important, we would he willing to pretermit any objection which might perhaps be taken to the manner in which the demurrer presents the issue, and decide the.question if that could be done at this stage of the cause. We will not repeat the averments of the original and amended bills in ex-tenso. They will be set out in the report of the case. Nor do we intend to undertake any elaborate review of the many cases cited; nor to formulate any general statement of the tests to be applied in such cases. The author of the chapter on “Fixtures” in 19 Cyclopedia of Law and Procedure states it to be a mixed question of law and fact whether a chattel has become a part of the realty. He submits that from a consideration of the cases no more specific formula is possible, and very justly observes that “it is the effort to compress the .tests of whether there has been such annexation as will change the status of the thing in question into a compact and specific formula that has rendered inevitable the contradictions in the decisions.” Page 1038. Appellant borrowed money from the appellee upon the express stipulation that it should be used in the erection of a permanent structure or building upon the mortgaged premises. There is, of course, no contention that the mortgage does not cover the building thus erected. Nor will appellant understand that the stipulation to which we have referred above has been permitted to be influential in determining, the question whether the machinery was subsequently attached to the freehold in such manner and under such circumstances as to indicate an intention that it should become permanently a part thereof. This we say for the reason that while the intention with which a chattel is attached to realty is everywhere considered to be of — 395 — great importance, and while it would require no farfetched inference to support the conclusion that the parties to the mortgage contemplated that' the machinery should he located, as well as the building corn structed, for the benefit of the inheritance, still it is not precisely so alleged in the bill. It is now referred to for the sole reason that appellant in his brief desires it to be noted that the mortgage makes no mention of the building. Our conclusion has been reached upon consideration of the averments of the original and amended bill. We cannot as yet know what the proof may show. Ás we understand appellant’s brief, he insists that on the facts alleged the court must say as matter of law that as between the parties to this appeal the machinery has never become a part of the realty. Now complainant’s general averment is that “all of said machinery above described was installed and attached with specific reference to the building, and in furtherance of the purpose for which the said building was erected, and the object arid intention that the same should be permanent, and that as between your orator and the said Walter M. Grubbs, the said articles, etc., are fixtures, and are and always have been since their installation and connection, a part of the realty embraced within the lien of your orator’s mortgages aforesaid.” But appellant contends that this general, and as we think, sufficient averment of the original bill, though retained in the amended bill, is unsupported, is in fact eviscerated and destroyed by certain affirmative averments of the bill in its last shape, and by its failure to aver some other facts which will be mentioned, so that, upon the whole, the machinery in controversy, as between the parties to this appeal, cannot be held to have become a part of the freehold except by the exercise of unwarranted favor to the mortgagee, — 396 — whereas the requirement of the law is that .on demurrer the averments must he taken most strongly against the pleader. In this connection appellant observes that the bill contains no allegation that the machines could not be removed from the building1 without doing injury thereto; nor any that they are so ponderous as that by reason of that fact alone they ought to be considered as permanently placed; nor any that they could not be used as effectively in some other building; nor that the placing of the machines in the building enhanced the value thereof; nor that any of the machinery except the motor is actually attached to the building. No one nor all together of these omissions prevented the machines from being fixtures as they are alleged to be, though some or all of them may be of significance in the final determination of the question. But in addition to the general averment already noted it is averred that the building was planned and built for use as a printing office; that the machinery is ponderous and held in place by its own weight while being operated; 1 hat the large press rests upon brick piers that are built from the ground underneath the floor so as to prevent vibration; that the machinery is operated by an electric motor which is fastened to the wall by bolts; and that power is furnished “from the motor to the shafts (themselves fastened to the walls of the building), and from the shafts and pulleys to the belts, and from the belts to the machines.” On this statement of the contents of the bill, and upon consideration of the principles of Jaw declared, and the authorities cited and quoted, in Humes v. Higman, 145 Ala. 215, 40 South. 128, for the mere repetition of which at this time there seems to be no occasion, we conclude that the machinery in question is averred to be a part of the realty and within the lien of the mortgage, whatever the proof in that re — 397 — gard may develop on a final, hearing. So, after all, we can do no more than respond to the specific question raised by the demurrer which avers the bill to be inconsistent, repugnant, and self-contradictory in respect to the connection of the machines with the realty. We do not find the demurrer to be well taken. The machinery in question ivas bought by Grubbs from the Dodson Printers’ Supply Company, which company retained title as security for the unpaid balance of purchase money. Before the bill ivas filed that company had brought statutory detinue for the machinery, and it had been claimed and replevied by Mrs. Grubbs. The amended bill contains a prayer that the detinue suit be enjoined, and that upon final hearing-complainant be allowed to pay off and discharge the balance of the debt due to the Dodson Company, and that the building and the machines be sold as an entirety. To this part of the bill the appealing- defendants demurred and now complain that their demurrer was improperly overruled. The machines may be fixtures as between complainant and appellants, though, as between the Dodson Company and all others, they may be mere chattels. But the Dodson Company has made no complaint of this feature of the bill either here or in the court below. On the assumption that as between appellants and appellee the machines do form a part of the realty, as the bill alleges the case to be, it is not perceived how the relief here sought can prejudice any right of the appellants. The court of equity has power to make the complainant’s mortgage security completely effective according to the intent and purpose of the parties. If the Dodson Company were objecting to this feature of the bill, an entirely different question would be presented. — 398 — The original hill was divided into paragraphs numbered from 1 to 17a. By amendment, paragraphs lettered from A to K were added to the bill. The effect of one of these paragraphs was to strike certain words from paragraph 7 of the original bill. It is urged that by lettering the amendatory' paragraphs, instead of numbering them, there was a violation of Rule of Praciice No. 8, which directs that “the stating part of all bills must be divided into sections, and numbered consecutively, 1, 2,” etc. We see.no reason why a substitute should be sought for so plain a direction. But the fact that every purpose of the rule has been met is so evident that we would not be satisfied to affirm error of the ruling below which sustained the bill against the demurrer taking objection to the bill for a departure from the practice indicated by the rule. We are of opinion that the decree must be affirmed. Affirmed. Dowdell, O. J., and Anderson and Somerville, JJ., concur.