Chalifoux & Co. v. Potter , 113 Ala. 215 ( 1896 )

COLEMAN, J.,

The appellants sued in trover to recover for the conversion of certain fixtures which are described in the complaint. The plaintiffs leased a storehouse from Potter for a period of five years, ending September 30th, 1895, and after occrjpying the building for two years, sublet it, with the consent of Potter, to Weil & Brother for the unexpired term. The plaintiffs' interest and title to the fixtures arose from certain provisions contained in the lease from Potter, and rights reserved in the sub-letting to Weih & Brother. The lease contract from Potter provided for the construction of certain fixtures in the storehouse by the parties of the second part (plaintiffs), and provides, that “it is further agreed and contracted by the parties hereto that any fixtures which may be. put into said premises by the party of the second part at his own cost, shall remain Ms property witli the right to remove the same. The rental contract with Weil & Brother for the unexpired term, provided that the parties of the second part (Weil & Brother) “can use, free of rent, the fixtures contained therein until the expiration of this lease, but to remain the property of the party of the first part [plaintiffs] with the right to remove the same at the termination of this lease.” Prior to the 30th of September, 1895, Weil & Brother leased the premises for a term of years from Potter, to begin after the expiration of the lease to plaintiffs. It is evident from the facts of the case that there is no question of a bona fide purchaser without notice involved. It has long been the law, that parties by contract as between themselves convert a part of the realty into personalty, and by contract may prevent fixtures to be added from becoming a part of the realty, whatever may be the character of the fixtures.-Foster v. Mabe, 4 Ala. 402; Harris v. Powers, 57 Ala. 139; Vann v. Lunsford, 91 Ala. 576; Muir v. Jones, 19 L. R. A. 441, and notes; Carlin v. Ritter, 6 Am. St. Rep. 467. The legal difficulties which usually arise between landlord and tenant as to fixtures and the right to remove them, or the rights of purchaser and creditors, are those which grow out of the relation of the parties without contract. Where the parties by agreement provide that certain fixtures to be erected by the tenant, shall remain his property and be removed by him the contract controls ; and if no time is fixed for removal,, and notice not given, they should be removed within a reasonable time. But under the facts of this case, had the contract not provided for the removal of the fixtures, the plaintiffs could not be held to have forfeited or surrendered the fixtures to the landlord or the new lessees. Transactions were pending between the parties looking to a sale of the fixtures to Weil & Brother, and there was no delay in making the demand. The case on the merits was very simple. By joining issue on the special pleas instead of filing objections to them and having them purged of immaterial matter, the only difficulty has arisen. After consideration, our conclusion is, that as each of the special pleas concludes with the averment, “and they have not converted the same,” this averment presented an issue which the plaintiff might treat as an averment qf fact and join issue.

There can be no question that the plaintiffs were entitled to recover under the facts in the present record.

Reversed and remanded.