Kester v. Schuldt

ON REHEARING.

AILSHIE, J.

— A rehearing was granted in this case and it was again argued at the March term. There seems to be some uncertainty as to the effect and extent of the perpetual injunction granted against the sale of the property levied on by the sheriff in the foreclosure proceedings of Phillips v. Salmon River Min. etc. Co., 9 Idaho, 149, 72 Pac. 886. In order that there may be no misunderstanding or uncertainty as to the scope and extent of the decree, we will order and direct that it be so modified as to limit and restrict its application to the specific property described in the conditional sale notes held by respondent against the Salmon River Mining and Development Company and the seven hundred feet of sixteen-inch pipe claimed in addition thereto. In all other respects the judgment must be affirmed and the opinion of this court previously filed will stand as the opinion of the court.

There are two reasons why the judgment of the lower court must be affirmed as above indicated: 1. It is nowhere shown that the respondent ever consented to the Salmon River Mining and Development Company, or anyone else, attaching or affixing the personal property or machinery to the realty for the purpose of making it, in point of law, a fixture and therefore a part of the mine. On the other hand, the terms of the conditional sale notes would, in the absence of other evidence, tend to disprove that theory. 2. It is nowhere shown by any evidence that would bind the respondent that he ever waived his right to reclaim the property or ever in any manner vested the title in the conditional vendee. If any one of the foregoing facts had been shown by competent evidence, we might hold as appellant contends, but in the absence of any such showing, we must affirm the judgment.

While the chattel mortgage through which respondent claims title to the seven hundred feet of piping was subsequent in point of. time to the Phillips lien, still it does not appear from the record that the piping had become a fixture or a part of the realty in such manner as to be holden by the lien as against a chattel mortgage.

The case will be remanded to the trial court with directions to modify the decree as above indicated, and the costs of appeal will be divided equally between appellant and respondent.

Stockslager, C. J., concurs. Sullivan, J., took no part in the decision.