Summary
Appeal from chancery court, Monroe county.
Hon. J. Q. Robins, Chancellor.
- Suit by M. D. Landau against E. 0. Skyes as receiver of the Aberdeen Oil and Ice Company. Judgment for defendant and complainant appeals.
The facts are fully stated in the opinion of the court.
We respectfully ask the court to bear in mind that the descriptive language in the deed of trust under which we are basing our present contention, is the following:
“It being understood that this conveyance is intended to include all of .the property of every Icind and description now in the possession of and owned and operated by said Aberdeen Oil & Ice Company and constituting a part of its plant and equipments in the city of Aberdeen, Monroe county, Mississippi, whether herein specifically described or referred to or not.”
As hereinbefore pointed out, it is agreed that the articles' sold to Mr. Cahn' by the receiver, shown in exhibit “A” to the “Agreed Statement of Facts,” the proceeds whereof are claimed by appellant, as purchaser under the deed of trust, were on the premises of said Aberdeen Oil & Ice Company when the deed of trust mentioned was executed, and were there when the sales by the substituted trustee and receiver were made.
The sole question to be determined, therefore, is whether or not any part, or all, of the personal property sold by the receiver, the proceeds whereof are so claimed by the appellant, constituted a part of the “plant and equipment” of the Aberdeen Oil & Ice Company.
The agreed statement of facts shows:
“That the coal was bought for the operation of the machinery and that the hull and meal hags were used for the shipment of hulls and meal. ’ ’
The learned court below held that the coal and hull and meal hags were not covered by the phraseology of the deed of trust and as we recognize that this holding is consonant with a fair and reasonable interpretation of the language used in the deed of trust, especially as the coal was for consumption and as the hull and meal bags were intended for sale, and neither the coal, nor the bags, reasonably intended to remain a permanent part of the property of the Aberdeen Oil & Ice Company, we have no disposition to question the holding of the. court below, in this respect.
With reference to the other articles of personal propierty, the proceeds of which the court denied appellant, the agreed statement of facts shows, that “they are all articles which are usually and ordinarily used in connection with the office and operation of oil mills, ice factories and ginning plants” — the business in which the Aberdeen Oil & Ice Company was engaged — and are also “usually and ordinarily used in connection with the offices of any other factory, mercantile establishment, bank, law office or other business office, which have an up to date office outfit,” and that “while these same articles are not necessary to the prosecution of the oil mill, ginner or ice plant, or any of these other businesses in which they may be found and used,” they, are up to date conveniences for the oil mill and other establishments as above set out and that while they are not peculiarly or specially adapted to the oil mill, ice‘or ginning business, and may be used in any other business above mentioned, and while it is possible to conduct a ginning business, an oil mill or ice factory without all or some of these articles, that these articles add greatly to the convenience of all the business mentioned and to the proper conduct thereof.
In other words, the agreement, in substance, recites that while these articles are usually and ordinarily used in connection with the business in which the Aberdeen Oil & Ice Company was engaged at the time it executed its deed of trust, and in connection with the operation of which it used them, and are “up-to-date” conveniences for the operation of the business in which said company was engaged, and add greatly to the convenience and proper conduct thereof, and also partake of the same characteristics when used in' connection with other enterprises.
As hereinbefore pointed out, the learned court below awarded appellant the proceeds of -the ceiling fan, amounting to sixteen dollars, but denied him the proceeds of the other articles of office furniture including books, records,- stationery, stoves, linoleums, chairs, iron safe, typewriter, desks, tables and adding machines, although, under the agreed statement of facts,.the ceiling fan bore some character attributed to the other articles mentioned.
We respectfully submit that as the record shows that said articles were situated on the premises described in the deed of trust, at the time of the execution of that instrument, and at the time of the purchase by appellant, and as the Aberdeen Oil & Ice Company was, therefore, at the times mentioned, “equipped” with said articles, they necessarily constituted a part of the equipment of said company, and were therefore covered by the terms of said deed of trust, under the agreement made between all of the parties interested, as hereinbefore shown, the proceeds thereof'properly belong to appellant.
We respectfully contend that the fact that these articles might have been used as a part of the plant and equipment of some other enterprise, did not prevent them from being, as a matter of fact, a part of the equipment of the Aberdeen Oil & Ice Company in connection with which they were actually used. If the. mere fact that an individual article might he used in the operation of two or more enterprises shall deprive it of the character of being a part of the equipment of an enterprise in connection with which it is actually used, it would essentially follow that no individual article can constitute a part of the plant or equipment of any enterprise unless, it be an article which is susceptible to only one use in connection with one particular hind of business.
The question is, not whether “the article might have constituted a part of the plant or equipment of some other enterprise, but whether they did constitute a part of the equipment of this particular concern, namely, the Aberdeen Oil & Ice Company.
That they did constitute a part of the equipment is indisputably shown by the agreed facts.
We find the word “equipment” defined in Century Digest and Encyclopedia,, vol. 3, p. 1985 as follows:
“Anything that is used in or provided for equipping, as furniture, habiliments, war like apparatus, necessaries for an expedition or for a voyage, or the knowledge and skill necessary for a vocation, as the equipment of a hotel, a ship or a railroad; the equipment of a man for the ministry, or for the law.”
We find the word “equipment” defined by Webster, as follows:
“Whatever constitutes an outfit for some special purpose.” The “special purpose” for which the articles now in controversy were used by the Aberdeen Oil & Ice Company was the equipment and operation of its. office.
In the case of Chicago, Milwaukee (& St. Paul R. R. Co. v. Hoyt et al., 89 Wis., p. 314, 67 N. W., p. 1891, the court in construing an agreement involved in that proceeding, said:
“By equipment as used, we understand reference is made to the locomotives, cars, furniture, etc., with which the three railroads mentioned were, at the time of closing the deal, to be equipped.”
Paraphrasing this language we may say that by “equipment” as used, we understand reference is made to the furniture, etc., with which the Aberdeen Oil & Ice Company was, at the time of the execution of the deed of trust, “equipped.”
The deed of trust in question from the Aberdeen Oil & lee Company to Leftwich, trustee, etc., conveys certain real estate in the city of Aberdeen, describing same, together with all houses, buildings, structures, improvements, and machinery, now or hereafter situated on or belonging to said lands, as well as easements, rights, ways, privileges, thereunto belonging or appertaining, or in any wise appertinent or appertaining thereto. Now, up to this point, it is clearly a mortgage upon the land, machinery and fixtures, that is to say, it does not convey any personalty: Then proceeding this deed of trust reads as follows: “It being understood that the conveyance is intended to include all of the property of every ldnd and description now in the possession of and owned and operated by the said Aberdeen Oil & Ice Company, and constituting a part of its plant and equipment in the city of Aberdeen, Monroe county, Mississippi, whether specifically described or referred to or not.” What effect then, has this latter clause? It would appear at first blush as an “omnium gatherum” clause. We contend that a .fair and reasonable construction of the latter clause, simply means that this being a mortgage of real estate with the machinery of an oil mill, ice factory and ginnery located thereon and very little being said about the description of the machinery of either of the three plants and the machinery of these plants being necessarily varied and extensive as their natures would suggest, the thought or idea would naturally occur to the draftsman out of abundant caution, to add a clause which would cover as nearly as possible not only all of the machinery, hut all that was “appurtenant,” or “appertained” or belonging thereto of every land and description now in the possession of and owned and operated by the said Aberdeen Oil & Ice Company and constitute a part of its plant and equipment, which means of course the machinery which is being operated with its fixtures, of the several plants before mentioned, with such other tools, not being fixtures, but being specially adapted or essential to the proper use of these plants. This would be, and is, we think, the fair and reasonable interpretation of the two clauses above and which is relied upon by the counsel for appellant, and supported, we think, by authority: Jones on Mortgages, vol. 1, 2nd Ed., §§ 444 and 445, and citations under said sections, not at hand. See also sections 435 and 430,
If the mortgagor had owned and been in possession of other personal property, not pertaining or belonging or essential to the machinery which was the subject, surely it would have been the duty of the Scrivener to have described the personalty so intended to be conveyed; but as the machinery was the subject and that of like character or nature, “ejusdem generis,” then it was only necessary to use language of general terms, viz: every kind and description of machinery or that which appertained thereto, now in the possession and being operated by the Aberdeen Oil & Ice Company and referring all the while to machinery and fixtures, or other essentials not being fixtures, but specially adapted to the proper and necessary use of the machinery.
The counsel for appellant concede the correctness of the chancellor in adjudging the steam and domestic coal to be personalty, and awarding same to the receiver, and we will show that he was consistent in his rulings throughout; that is to say, he followed the rule we have above laid down, that the mortgage above was given upon real estate and the machinery located thereon with whatever appertained thereto, or was essential or specially adapted to the business engaged.
Now this coal was as useful and as essential and equally well adapted to any other factory of any sort run by •steam, as it was to the Aberdeen Oil & Ice Company; .hence as it was an item wholly different in kind, it did not, nor was it the intention of the grantor that it should pass to the grantee in the. mortgage. The same may be •said of the bags, intended for the shipment of cotton seed hulls and cotton seed meal, transitory and somewhat like the coal practically consumed in the use of them; 'that is shipped away in their use and seen no more. Necessarily personalty, and so conceded by counsel for appellant, and properly adjudged by the court to belong to the receiver.
' The “ceiling fan” which was awarded to appellant by ■thé chancellor, was done necessarily upon the ground, or for the reason that it was a fixture, being attached or affixed to the ceiling of the office; and we concede that it was a correct ruling. The court likewise adjudged the work bench, vise, saw, filing machine, belt lacing machine, bits, hammers, etc., to ' the. appellant, being..done, we imagine upon the theory that these things were either ■fixtures or essentials to the proper use of the machinery, or its repair, or its permanent equipment, as being especially suited, etc.
■ .With reference to the other articles adjudged to be personalty and properly in the hands of the receiver, we would say, that each article is personalty; neither essential nor specially adapted to the use of the. appellant. Take the. iron safe, desks, tables, adding machine; two typewriters, chairs, etc.; these articles are just as well suited to an up-to-date office of a lawyer, doctor, or banker as the office of appellant, wholly indifferent, so far as being essentially necessary to an oil mill or ice plant, or a ginnery plant with no especial adaptability; perhaps more convenient and stylish only.
The appellant rests his whole claim upon the sole question as to whether or not the personalty here claimed constitutes a part of the. “plant or equipment” of the Aberdeen Oil & Ice Company. We have answered the query in the above argument and may again answer the same by saying it does not in the sense that counsel for appellant understands it.
The word, “plant” conveys the idea of permanency, fixedness, and fixtures. The definition of the word, “equipment,” as defined in the brief of appellant, Century Digest or Encyclopedia, very néarly meets our views, viz.: “Anything that is used in or provided for equipping.” Necessaries: That which is necessary or essential in a proper outfit; not anything that would strike one’s fancy, not necessary nor essential, and it must be. something of a permanent nature, bait fixtures, etc. . ■ • ,
The court will observe that the mortgage is not a chattel mortgage, if so, then the personalty or chattels would have, been definitely described, in fact, it would have been and is required under tbe law, but on the contrary it is a mortgage of real estate, laboriously and accurately described, together with the structures, improvements, machinery, .rights, ways, etc., and appurtenances, .etc. Then follows the “omnium cover em” clause, and especially the clause relied upon by appellant, viz.: All property of every kind in the possession of and owned and operated by the. Aberdeen Oil & Ice •Company and constituting its plant and equipment. The word “operated,” by, etc., is a techical word and used especially with reference to the running, and, operating of machinery. No one ever .heard of running or operating any of the personal property here enumerated*, chairs, iron safe, linoleum, tables, etc.. You do, however, operate the typewriters . and perhaps the adding machines, but they are so clearly office furniture for convenience, and not essential, etc., that they verify the correctness of the rule, being the exceptions. The words, “plant” and “equipment” are here used as synonyms, and we submit, show conclusively that it means permanent, fixed, etc. Webster’s New International Dictionary defines “plant:” “The machinery, apparatus, fixtures employed in carrying on a trade.” • Equipment before referred to means about the same. So we have not merely the rule of ejusdem generis, but according to the above definition, all of the property of every kind, constituting the machinery, apparatus and fixtures, employed in operating the Aberdeen Oil & Ice Company is intended to pass by the conveyance, which in plain English means fixtures and appurtenances belonging to the machinery located upon the real estate described, etc., but to give it a broader interpretation — or one that conveys all the personalty found upon the premises, in no wise attached to the soil or appurtenant to the machinery, or essential to its use, or peculiarly adapted to its' service, is from our view point most remote and strained. To say more would appear to argue in a circle. We therefore ask an affirmance of the decision of the lower court.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
