Brown v. Roland , 92 Tex. 54 ( 1898 )

Montgomery, being the owner of a large tract of land, erected thereon a mill and gin propelled by steam, The building was upon posts set in the ground; the boiler and engine were stationary ones, the former being set in brick work which almost inclosed it and the latter being bolted down to heavy timbers let into the ground, and the other portions of the machinery were attached to the building simply to steady them in the usual way. Several years thereafter he sold the machinery to Roland, agreeing that the latter might operate it as it stood upon the land for a period of five years or so long as he might desire and then remove same, which sale and agreement were not evidenced by writing, and a few days thereafter he, by general warranty deed duly executed, conveyed said land to Johnson, the deed containing no reservation of the machinery, Johnson however having notice of the sale to Roland and assenting thereto. Soon thereafter Johnson executed a deed of trust upon the land to secure a loan from Brown, and the latter by foreclosure of same acquired Johnson's title. The Court of Civil Appeals upon a conflict of evidence have found that Brown's agent at the date of the trust deed had notice of Roland's claim, and we will assume that fact in disposing of the case. Under this state of facts Roland attempted to remove said machinery, whereupon Brown obtained an injunction and Roland reconvened for damages for being deprived of the use of the machinery by reason of the injunction and damages on account of injury to the machinery from exposure through negligence of Brown pending the suit. Judgment for Roland for the machinery and damages having been affirmed by the Court of Civil Appeals, Brown has brought the cause to this court, making many assignments of error which in different forms urge the proposition that the trial court and Court of Civil Appeals erred in not holding the verbal sale of the machinery from Montgomery to Roland void. One of these assignments complains of the refusal to give the following charge: "The jury are charged, that if the evidence does not show an actual severance of the mill and gin machinery in question by some one of the owners of the fee in the land on which the machinery is situated, previous to the time when plaintiff became the owner of the land or a lienholder thereon, then and in that event, the machinery in question passed in the sale and deed made by the sheriff of Kaufman County, Texas, to the plaintiff herein, and the jury should so find."

Since there was no evidence tending to show that there had ever been an actual severance of the machinery since Montgomery first attached it to the freehold as above stated, this charge was virtually an instruction that the verbal sale thereof to Roland was void, and that it therefore passed with the land under the trust deed and sheriff's deed to Brown. The case before us does not call for an opinion as to the validity of a verbal sale by a tenant of machinery so attached to the freehold by him that he has the right to detach and remove the same, nor of such a sale by the owner of the land who intended at the time of attaching same that it should not become a permanent accession to the freehold. It seems to be generally held that in such cases, at least as to the former, the things attached, having never ceased to be personalty, can be conveyed without writing. The question for us to determine is, whether Montgomery, the owner of the land, having placed the apparently permanent structures upon the same without any proved intent that they were not to be permanent accessions thereto, could subsequently make a valid verbal sale thereof without having first severed them from the land. We are of opinion that he could not. In the absence of evidence as to his intention the law presumes that the owner in attaching improvements of this character to the land does so "with a view to a lasting enjoyment of his estate, and for its continued enhancement in value," and therefore same becomes a part of the land (Tiffit v. Horton, 53 New York, 377; Hutchins v. Masterson, 46 Tex. 551 [46 Tex. 551]; Jones v. Bull, 85 Tex. 136), and "a sale of it, even by the owner of the land, would be void, because in conflict with the statute of frauds." Hutchins v. Masterson, supra. Since the verbal sale from Montgomery to Roland passed no interest, the subsequent deed executed by the former to Johnson and the trust deed executed by Johnson and its foreclosure as aforesaid passed the title to Brown, notwithstanding the verbal sale to Roland, the attempted verbal reservation of his rights at the time of the conveyance from Montgomery to Johnson, and the notice thereof to Brown at the date of said trust deed. The verbal sale being contrary to the statute as to Montgomery, in order to give him the full protection of the statute it must be held that he could convey the property free of same though his vendee Johnson had full notice thereof, and having conveyed the land by deed in general terms, without expressing any reservation of Roland's rights, such terms of the deed can not be varied by engrafting thereon such parol reservation. Latham v. Blakely, 70 N.C. 368; Bond v. Coke, 71 N.C. 97; Madigan v. McCarthy, 108 Mass. 376; Pierce v. George, 108 Mass. 78; Burnside v. Twitchell, 43 N.H. 390.

For the error of the court in refusing to give said charge, the judgments will be reversed and the cause remanded.

Reversed and remanded.