Pioneer Savings & Loan Co. v. Fuller

Collins, J. When the annexation of a chattel to real property by a tenant is of such a nature that it can be detached without [63] being materially injured, and without material injury to the things real to which it is annexed, and there is an agreement between a landlord and the tenant that the chattel shall remain personal property notwithstanding the annexation, the chattel will, as between them, retain that character. Warner v. Kenning, 25 Minn. 173. See, also, Stout v. Stoppel, 30 Minn. 56, (14 N. W. 268;) Ingalls v. St. Paul, M. & M. Ry. Co., 39 Minn. 479, (40 N. W. 524.) The respondent had the right, therefore, as against his landlord, to remove the mantel and tiling, and this seems to be admitted. The real question here is as to his right to detach and remove the property during his term under the lease, and prior to the expiration of the period fixed by law within which the landlord had the right to redeem from the mortgage foreclosure sale. During this period the mortgagor landlord was entitled to full possession of the premises, and to all rents and profits arising therefrom. The purchaser at the sale stood in no other or different position in these respects than did the mortgagee prior to the sale. Either could prevent or restrain waste, but both were powerless to interfere with the mortgagor’s right to possession and to become a landlord. If we did not regard the question now before us as already settled in this court, we should not hesitate to say that the respondent tenant had the right to detach and remove the property in question, as agreed upon between his landlord and himself. But in the recent case of Merchants' Nat. Bank v. Stanton, 55 Minn. 211, (56 N. W. 821,) it was held that, where it was agreed between the owner of mortgaged real property, in possession, and another person, that the latter might erect a building upon the land, and that it should remain the personal property of the person who erected it, the absence of a concurrent agreement to that effect on the part of the mortgagee would not of itself make the building a part of the mortgage security, although it was so built that, in the absence of any agreement to the contrary, it would have become a part of the realty. The reasoning in that case is applicable, and fully covers the question now under consideration. See, also, Tifft v. Horton, 53 N. Y. 377. The counsel for appellant argues that the court erred in finding that the mantel and tiling were detached prior to the expiration [64] of the year of redemption. There was some dispute over this, but there was evidence to warrant the finding as made, just as there was evidence which would have supported a contrary finding. This covers all assignments of error which need special mention. Order affirmed. (Opinion published 58 N. W. 831.)