O'Donnell v. Burroughs

Gilfillan, C. J. Whether the platform scales are to be regarded as part of the realty or as personal property, it is impossible to94 sustain the decision of the court below that the title to them is in the defendant. If real estate, the title passed under the mortgage to Welch and the foreclosure thereof, and plaintiff has that title. The mortgage was prior to the conveyance (by the mortgagors) to McLaughlin, under which alone the latter could claim title to the scales. If they were personal property they did not pass to him by the conveyance of the real estate, and he could not transfer them to his assignee, under whom defendant claims. (Opinion published 56 N. W. Rep. 579.) The facts stipulated, especially, that the scales were set up in the street opposite the lot of the parties setting them up; that the parties had to get, and did get, permission from the village council to set them there, and that consequently they could remain there only during and by the sufferance of the council, — are inconsistent with an intent to annex them permanently to the soil, so as to make them part of it. They were to be regarded as set up temporarily only, to be removed whenever the council should withdraw its permission. They did not become part of the real estate. But, although not a part of the realty, so that the title of the original owners could pass to plaintiff under the mortgage and foreclosure, and although the title of the original owners may still remain in them, yet as between these two parties the right of the plaintiff is superior. The scales are in his possession, on his land, left there by the owners. If those owners choose to let them remain in his possession, no one else can question his right to possess and use them. The judgment must be reversed, and the court below directed to enter judgment adjudging that the plaintiff is entitled to the sole possession and use of the scales.