Bartlett v. Haviland

Grant, J. This is an action of trover for the conversion of 1 sliingle-mill frame, 1 knot-sawing machine and arbor, 7 small circular saws, 200 feet of belting, 50 feet of shafting, 20 pulleys, 1 gumming machine complete, 1 shingle jointer complete, 1 wheelbarrow, 1 crowbar, 1 cant-hook, and 1 edger complete. Plaintiff had verdict and judgment. The evidence tended to show the following facts: In 1872 a copartnership, composed of the plaintiff and two-others, under the firm name of Bartlett, Bonny & Saxton, owned a piece of land upon which was situated a portable steam saw-mill, containing a boiler, engine, and double circular mill, with some belting, which was covered by a building so that it could be taken out without injury. The firm, while owning both the land and the mill, gave a mortgage on the land, and a chattel mortgage upon the mill and machinery, to one Gregg. Subsequently plaintiff acquired the interest of his partners in both the land and the mill. This was in 1873. In 1876 the real-estate mortgage to Gregg was foreclosed. After the foreclosure plaintiff continued in possession of both the land and the mill as tenant. In 1880 the purchaser of the land at the foreclosure sale sold and conveyed it to plaintiff's [555] wife, taking back a mortgage for part of the purchase price. Subsequently this mortgage.was discharged, and Mrs. Bartlett gave a real-estate mortgage* to Gage, who was evidently the purchaser at the foreclosure sale, for $200, dated January 14, 1884. Gage knew that plaintiff was in possession of the premises, and understood that ■he claimed to be running the mill, and had some machinery there, and he did not suppose that his mortgage covered the machinery. This mortgage ivas assigned by Gage to the defendant, who did not examine the property, and made no inquiries as to who was in possession. The property now in dispute was placed upon the premises after the execution of the first mortgage, and before the execution of the second mortgage by Mrs. Bartlett to Gage. Plaintiff took his wife's acknowledgment to the second mortgage. This mortgage was foreclosed, and the land bid in by the defendant. After the time of redemption had expired she took possession of the land, and of this property, claiming that it was covered by the mortgage. The machines were fastened to the floor by cleats or bolts, in such a manner that they could be removed without injury to the building, while the saws were hung upon hooks. 1. It was said by this Court in Scudder v. Anderson, 54 Mich. 126: “It is impossible to regard personal property capable of removal from the land, which does not belong to the land-owner, as part of the realty.” TJpon the question of fixtures this case is ruled by that ease, and Conrad v. Mining Co., 54 Mich. 249. Plaintiff was a tenant at the time he placed the machines upon the land. There was therefore no unity of title to the realty and the machinery. There is no conflict about the material facts, and the court would have been justified [556] in instructing the jury that the property had not become a part of the realty. 2. I see no reason in holding that plaintiff is estopped to assert title by the fact that he witnessed and took the acknowledgment of his wife’s mortgage. There was nothing in the mortgage to indicate that it covered this property. Plaintiff was in possession, the mortgagee knew it, and understood that he claimed the property. The assignee of the mortgage occupies in this case no other or different position from that of her assignor. There is no room for the doctrine of estoppel. Objections were raised to the admission of certain evidence, and to portions of the charge of the court, but under the above disposition of the case they become immaterial. The judgment is affirmed. The other Justices concurred.