Penn Mutual Life Insurance v. Semple

The opinion of the court was delivered by Knapp, J. The appellant having filed a bill to foreclose a mortgage given [584] by Samuel Semple and others to the appellant corporation upon certain lands and real estate upon which was a factory called the “Rancocas Thread Mills,” including, also, the steam engines, boilers, shafting, belting, gearing, and all other machinery appertaining to said premises, now upon said premises, or that shall hereafter be placed or erected thereon, had in due course a decree for sale of the mortgaged premises. The respondent having a judgment against the mortgagors, levied upon the following machinery: one guide cutting machine, two spooling tables, five winding frames, two spinning frames, forty spooling heads, one automatic table, one pounding machine, fifty-one cards, twelve roving frames, six drawing frames, one lap machine, three railway heads, three doubler heads and picker, one grinding machine, twelve mules and four spinning frames, nineteen dressing machines and seventeen spindle frames, one drill press, forty-seven twisting machines, eight cap spoolers, one re-winder, eight reels, two lap machines and one cotton opener, which property was used in said mill when the mortgage was foreclosed. The appellant filed a petition in the foreclosure suit, praying that the respondent he enjoined from selling said' machinery under the execution issued upon his judgments. Upon a hearing of the parties, Vice-Chancellor Bird advised against the injunction, and it was denied. The appeal is from the decree refusing the injunction. The facts in this case will be found in the opinion of Vice-Chancellor Bird, and need no further mention here. The question presented by the appeal is, whether certain machinery mentibned and described in the mortgage of appellant belongs to the class denominated fixtures, and passes with the real estate under the mortgage, or whether it is personal property and subject to seizure under execution of respondent, who is a judgment creditor of the mortgagors, The appellant’s mortgage was not filed or recorded as a chattel mortgage, and its claim to have the property must fail unless the machinery in question had become part of the freehold. The description of property found in both mortgages clearly includes this in dispute, and had the appellant, beside registering them as mortgages of real estate, availed itself [585] of the statutory provisions concerning mortgages of chattels, nothing would stand in the way of its claim. But under settled rules, recognized and enforced by many adjudications in this state, there is no doubt that all the machinery which is made the subject of this contest is personalty. There is nothing in the case to show that it was ever annexed to the lands with the design to make it a part of the realty. The nature of the property, and its relations to the factory in which it was being used, differ in no material respect from the features which marked the case of Rogers v. Brokaw, 10 C. E. Gr. 496; S. C. on appeal, 11 C. E. Gr. 567. These instruments were all prepared and completely finished at the place of their manufacture ready for use in any locality where they might be required, and driving power could -be applied. They needed no adaptation to the factory of the mortgagors, nor did their employment there require any change to be made in the building for their reception; they could at any time be removed without injury to themselves or detriment to the building, and could be used as well elsewhere as there. I see no evidence in any act of the owners, or in any circumstance growing out of the organization or manner of conducting the manufacturing establishment, showing a design on the part of the owners to make a permanent addition of the property in dispute to the realty. Without some act coupling the machines with the land, or with something appurtenant thereto, with the intention to permanently unite them, they are not transformed from personal things into lands • they continue in their quality of chattels personal until, by an executed intent, they are incorporated in the real estate. Then, and not before, do they lose their identity and separate existence. Williamson v. New Jersey Southern R. R. Co., 2 Stew. Eq. 311, 329; Quinby v. Manhattan Co., 9 C. E. Gr. 260; Rogers v. Brokaw, supra. The appellant, in the argument here, relied, not alone upon the view that the subject of controversy passed under its mortgages as fixtures, but presented the further point that the respondent ought not to be permitted to stand here as a judgment creditor reaping any advantage over appellant from the provisions of the law respecting chattel mortgages, because, as alleged, a large part [586] of the money secured to the appellant by its present mortgages was loaned upon a prior security embracing the same property, for which the mortgages now held are a substitute, in which prior loan the respondent, as one of the then mill-owners, shared, and joined with his partners, the present owners, in the mortgage securing such loan. Appellant says that respondent is still its-debtor for a part of the loan, and insists that under these circumstances he ought not, in a court of equity, to be permitted, as an ordinary judgment creditor, to antagonize the appellant’s claim to take it as personalty. We deem it unnecessary to consider, on this appeal, what determination would be a just one between these parties upon a case made on the faets alluded to. No such case is embodied in the petition of the appellant, nor was it the subject of proof or consideration in the court below. We ought not, therefore, to give it a hearing in this appeal. The validity of the respondent’s judgment is not questioned upon the record, and the appellant grounds his alleged priority of lien solely through the force and effect of its mortgages. Failing in that position, the decree below should be affirmed. Decree unanimously affirmed.