Opinion
10-31-1885
EARLY v. BURTIS and others.
S. M. Schanck, for complainant. P. S. Scovel, for defendant Burtis,
On bill to foreclose.
S. M. Schanck, for complainant.
P. S. Scovel, for defendant Burtis,
BIRD, V. C. The bill is to foreclose two mortgages: one for $1,000, a purchase-money mortgage; and one for $500, for money loaned. After the filing of the bill, the complainant comes into court, and shows that defendant Burtis had sold to his father, another defendant, a steam-boiler which had been used in and upon the premises in question, and that the father had advertised it at public sale, and had sold it, and had bid it off to himself, and was about to remove it. The complainant asks for an injunction restraining such removal. Early leased the premises to H. J. Burtis, the son, with the privilege of buying. While under the lease, H. J. Burtis put the boiler in the building, and used it, in connection with the engine of the complainant, to cook tomatoes for canning,—the same purpose as before and since. Afterwards he inclosed it. It has never been in any manner attached to the soil. It has always stood upon a brick or other foundation by its own weight. There are about 30 feet of pipe extending upward, supported by iron bars and clamps; the bars being fastened to the main building by large nails or spikes. The boiler has been twice taken out, and carried to the machinists for repairs.
The lease was executed on March 17, 1881, soon after which the boiler was placed in position by H. J. Burtis. On February 4, 1883, the complainant made a deed to H. J. Burtis for the premises, and took the first mortgage. In October, 1884, H. J. Burtis gave a bill of sale to his father, J. K. Burtis, for the boiler and other articles. In November, 1884, H. J. Burtis gave the $500 mortgage to the complainant. The complainant insists that the boiler is a fixture, and is subject to the liens of his mortgages. I cannot conclude that the complainant is right, I do not find a single case in New Jersey which goes so far. If this chattelbecame a fixture, it was only because of the slight attachment of the pipe to the main building. I cannot so decide without moving directly in the face of all the decisions upon the subject in this state, as I understand them.