Barbour Plumbing, Heating & Electric Co. v. Ewing , 16 Ala. App. 280 ( 1917 )

The insistence of the appellant is that it had the right to remove the articles which it did remove, by reason of the agreement had with Dr. Gnassi, the owner, who was at that time in possession, that the title should remain in appellant until the amount due on the heating plant was paid. This contract was oral, but, being made with reference to personal property, was not offensive to the statute of frauds, and as between Dr. Gnassi and the defendant was valid and binding. Broaddus et al. v. Smith, 121 Ala. 337, 338, 26 So. 34, 77 Am. St. Rep. 61; Harris v. Powers, 57 Ala. 139; Foster v. Mabe, 4 Ala. 402, 37 Am. Dec. 749. By contract between the parties the status of the chattel as personal property was preserved, unless their subsequent conduct manifested an intention on their part to attach this property to the real estate as a permanent fixture (Broaddus et al. v. Smith, supra), and if its status as personal property was not thus destroyed, there could be no doubt but that the defendant would have had the right to remove the property. There was much evidence in this case tending to prove that it was the intention of the mortgagor that the heating plant should become a permanent fixture, and some evidence that the vendor had such intention at the time the work was done, as was evidenced by the filing of a statutory lien against the real estate to which the heating plant was attached, and it was not until long after the amount was due and unpaid, and the mortgages were in process of foreclosure, that the vendor undertook to repossess itself of the heating plant under the oral retention title contract. In addition to this, there was much evidence tending to show an actual annexation to the realty; application to the use or purpose to which that part of the realty with which it is connected is appropriated; the intention of the parties making the annexation to make a permanent accession to the freehold. When these three things concur, the chattel loses its character as personal property and becomes real estate. Tillman v. De Lacy,80 Ala. 105; Quinby v. Manhattan C. C. Co., 24 N.J. Eq. 260.

Besides and in addition to the foregoing, the defendant, by filing its lien on the property where the heating plant had been installed, recognized the title as being in the mortgagor, Dr. Gnassi, and precludes it from now setting up title in itself. An election between inconsistent rights, having been once made, cannot be afterwards revoked. Hickman v. Richburg,122 Ala. 642, 26 So. 136; Fuller v. Eames, 108 Ala. 464,19 So. 366; Montgomery Iron Works v. Smith, 98 Ala. 644,13 So. 525; Lehman, Durr Co., v. Van Winkle Co., 92 Ala. 443,8 So. 870.

The other assignments of error are not insisted upon in appellant's brief. Merely referring to a ruling made the basis of an assignment of error, and stating that such ruling is error, is not an insistence on such an assignment, and such assignment must be held to be waived. Williams v. Spragins,102 Ala. 424, 15 So. 247; Syllacauga Land Co. v. Hendrix,103 Ala. 254, 15 So. 594. If counsel, in the preparation of briefs, would adhere to rule 10 of the Supreme Court (61 South. vii¹), adopted June 23, 1913, the decision of cases would be less difficult to the court and more satisfactory to litigants.

The rulings of the trial court were in line with the foregoing principles. We find no error in the record, and the judgment is affirmed.

Affirmed.

¹ 175 Ala. xviii.