Bringholff v. Munzenmaier

Dillon, J.

i notice-fixtures, The questions arising in this case have been investigated by the respective counsel, with a degree researc^ and care greatly disproportioned to tpg yalue of the property at stake. The cause has been argued before us with rare ability. It is not proposed in this opinion, to follow the range of counsel, nor to elaborate our. views; but simply to state the conclusion reached, and briefly the grounds upon which it rests.

Both parties claim under Kappes and Beinig, the original owners of the property ; the plaintiffs under a chattel mortgage, the defendants through a title derived from the foreclosure of a real estate mortgage embracing the property. The property in question, it is important to remember, was originally owned by Kappes and Beinig.

It was admitted that it was by them “ so permanently attached to the real estate owned by them as to form a part thereof as between vendor and vendee, the kettle being set in masonry, which was a. part of the walls,” &c. Before the mortgages were made the property in question had become and was a part of the realty. As such, it would be embraced in the mortgage of the 20th- of August, 1858, made by K. & R. to Rawson, under which the defendants derive title. • But of this mortgage the plaintiffs had no notice when they received their chattel mortgage of the 23d day of August, 1859.

Did the property in question, being, as we have seen, real property, pass to the plaintiffs by virtue of their chattel mortgage ? The plaintiffs maintain that it did, claiming it to be the law that the owner of lands may sell or mortgage fixtures thereon situate, which sale or mortgage has the effect in law to sever them and make them personalty; and that the mortgage itself is a license to the mortgagee to enter upon the premises and take the mortgaged property. To support these propositions the following authorities have *518 been cited and commented upon by tbe plaintiffs’ counsel: Folsom v. Moore, 19 Me., 252; Rapps v. Barker, 4. Pick., 238, 242; Smith v. Bensen, 1 Hill (N. Y). 176; The Bank, &c., v. Crary, 1 Barb., 542, 547, 548 ; Goddard v. Gould, 14 Id., 662, 665 ; Mott v. Palmer, 1 Comst., 564, 568; McClintock v. Graham, 3 McCord, 553 ; Byasse v. Ruse, 4 Metc. (Ky.), 372; Henly v. Brodie, 16 Ark., 511.

These propositions are denied by the defendants’ counsel, who contend that property which is de facto real estate cannot be constructively disannexed, and by virtue of such constructive severance (there being no severance in fact, and none immediately contemplated) made personal property and sold and mortgaged as such. And defendants’ counsel cite and rely upon the following authorities: Richardson v. Copeland, 6 Gray (Mass.), 536 ; The President, Directors and Company of The Union Bank v. Emerson, 15 Mass., 159 ; Gray v. Holdship, 17 Serg. & R, 413; Lee v. Risdon, 2 Eng. C. L. (7 Taunt., 188), 320; Amos & Fer. on Fixt., 232; Cook v. Stearns, 11 Mass., 537 ; Benton v. Sherpf 1 Allen, 133 ; Whitemarsh v. Walker, 1 Metc. (Mass.) 314; Nettleton v. Sikes, 8 Id., 35.

In the view we take of the case it is not at all necessary to pass upon these -questions. We may admit the plaintiffs’ position - that as between them and Kappes & Reinig, the property in question, though realty in fact, became, by virtue of the chattel mortgage, constructively severed and constructively personalty. Yet this doctrine of constructive severance (if well founded) could not, in our judgment, be made to apply against subsequent purchasers of the real property without notice of the constructive severance.

And just here it is, upon the agreed statement of fact, that the plaintiffs must fail. Defendants are purchasers of the property in question (for as between mortgagor and mortgagee, and vendor and vendee, it was part of the *519 realty), without any actual notice of the plaintiff’s claim; at] least, no such notice is stated to exist, and it must there-1 lore be assumed that the defendants, at the time of their, purchase of the real estate from Rawson, had no such] notice. /

They had no constructive notice of the plaintiff’s right, because the plaintiff’s mortgage was a chattel mortgage, and recorded and indexed as such. There never having been any actual severance of the articles in question, and the same being admitted to constitute, as between vendor and vendee, part of the realty, a subsequent purchaser would not be bound to take notice of the record of a chattel mortgage thereon; the statute requiring these to be separately recorded, and separately .indexed. Revision, ch. 93 and 96.

If the defendants, at the time of their purchase, had been shown to have had knowledge of the plaintiff’s mortgage, the question then arising would be much more difficult of solution. But without such knowledge, it appears to us plain that- the defendants have the title to the property in controversy. Any other rule would practically nullify the registry laws, or else introduce the startling doctrine that in examining the title - to real estate, the searcher must also examine the records of chattel mortgages.

If the defendants, prior to their purchase from Rawson, had visited the premises, they would have seen the property in question, constituting to all appearance, part of the real estate. There would be nothing on the ground and nothing in the nature of the property to advise them of the plaintiff’s adverse right or ownership. Rawson, and not plaintiff, was, it seems, in possession. If defendants should then examine the records of real estate transfers, they would there discover nothing advising them of the plaintiff’s claim. They are, therefore, entitled to and do stand free from it.

And it is upon this ground, without discussing others, *520 that we place our judgment, that under the agreed statement of facts, the law is with the defendants. We need not say how the case would be if the contest were between, landlord and tenant.

The judgment entered in the court upon the verdict of the jury is

Reversed.

Cole, J., having been of counsel, took no part in the decision.