Fifield v. Farmers National Bank of Princeton , 47 Ill. App. 118 ( 1893 )

Mr. Justice Lacey.

The sole question for our decision in this case is whether or not the machinery in question placed in and attached to the manufacturing building in the manner shown by the testimony and under all the circumstances became fixtures to the real estate and passed by the trust deed of Day to appellee. The question is one not entirely free from doubt and the authorities, as might be expected, are not altogether in harmony.

In consideration of the case we will first notice the nature of appellants’ contract'with Day in regard to the sale of the machinery. They undertook to retain title in themselves, secret to all the world save the parties to the contract, and thereby give an appearance of ownership in Day to the machines when in fact he had none. Contracts of this nature are disapproved of by courts and judges and held void as to third parties.

The Supreme Court of this State has often passed on the question so holding them void as to third parties. Jennings v. Gage, 13 Ill. 610; Brundage v. Camp, 21 Ill. 330; Murch v. Wright, 46 Ill. 488; Harvey v. R. I. Locomotive Works, 93 U. S. 664; Chickering v. Bastress, 130 Ill. 206. But in addition to this, appellants allowed the machines to be attached to the freehold and used in the building as a part of the plant, and this, too, under a deed to Day that required the machinery not to be removed within five years. We think, under those circumstances, the appellants in equity ought to be held as having waived the secret lien and consented to the machinery being used as a part of the manufacturing plant. If this should not be so, then Day would be placed in an appearance of affluence by which he could procure credit and deceive the public.

The intention of the parties has much to do with the question whether certain attachments to realty are to be regarded as fixtures that will pass with the land, and this intention is manifested by acts. Arnold v. Crowder, 81 Ill. 56. In speaking on this subject of intention the Supreme Court of Massachusetts in-v. Taunton Savings Bank, 23 N. E. Rep. 330, held the following language:

“ The tendency of modern cases is to make this a question of what the intention was with which the machine was placed in place * * Only it should be noted that the intention to be sought is not the undisclosed purpose of the actor, but the intention implied and manifest by his act. It is an intention which settles not merely his own rights, but the rights of others who have or may acquire interest in the property. They can not know his secret purpose; and their rights depend, not upon that, but upon the inferences to be drawn from th at which is external and visible.” We cite also Calumet Iron & Steel Co. v. Lathrop, 36 Ill. App. 249; First National Bank v. Adam, 138 Ill. 483; 28 N. E. Rep. 955; decided October 31, 1891, by the Supreme Court of Illinois.

It will be observed that appellants did not place the machinery in the factory building, but it was done by Day, who undoubtedly placed it there with the intention of its becoming a part of the factory, and this was at least impliedly assented to by appellants.

The fact, if it be a fact, that appellants claimed these machines before the taking the real estate mortgage by appellee can make no difference. Having allowed the machines to be placed in the building, appellants ought not to, be allowed to change their attitude when creditors were pressing for security and payment. It is not necessary to consider the question of whether appellants rescinded the contract with Day by tendering to him the check or draft he gave them in payment for the machinery.'

Feeling satisfied that justice has been done in the case we will not attempt to review the authorities cited with a view to reconciling them. The decree of the court below is therefore affirmed.

Deoree affirmed.