Opinion
No. 30819.
December 4, 1933.
1. FIXTURES. Whether structure is fixture, and therefore part of realty, is question of fact, determinable primarily by intention at time of annexation.
Intention in annexing fixture may be gathered from circumstances surrounding annexation and interest in realty of person by whom annexation is made. In some cases, controlling circumstance, where annexation was made by owner of realty, is whether article was annexed for more convenient and profitable use of realty itself, for general purpose for which person making annexation intended to use it.
2. FIXTURES.
Cotton gin held included under trust deed covering cotton plantation, where gin stands were attached to floor by removable bolts and screws.
APPEAL from Chancery Court of Sunflower County.
Cooper Thomas, of Indianola, F.W. Bradshaw, and Flowers, Brown Hester, of Jackson, for appellant.
There is much confusion among the courts and text writers as to what is and is not a fixture and each case generally resolves itself on its particular statement of facts. However a general test or criteria has been recognized by every court for application to the facts, namely: "First, annexation to the realty, either actual or constructive; second, adaptation or application to the use or purpose to which that part of the realty to which it is connected is appropriated; and third, intention to make the article a permanent accession to the freehold.
11 R.C.L. 1059; American Laundry Machinery Company v. Citizens National Life Insurance Company, 65 So. 113, 107 Miss. 108.
The gin stands are not necessarily a part of the cotton plantation. As a matter of convenience large cotton planters sometimes maintain and own their own gins. But such gins are not a part of the realty appropriated to the growing of cotton. In a great many instances planters take their cotton to a community gin located off of their property, which gins are owned by stock companies or by the planters in the community. A gin is absolutely essential for preparing the cotton for market, but it has nothing in the world to do with and is not adapted or applicable to the planting and growing of cotton.
In the case at bar the gin stands and machinery were placed in the building in connection with Johnson's business of ginning his own cotton and that of other planters and not in connection with his land or his business of growing cotton. Appellee made a loan on land, on a cotton plantation, not on a gin plant and a gin business.
Weathersby v. Sleeper, 42 Miss. 732; Boone v. Mendenhall Lbr. Co., 52 So. 584, 97 Miss. 554.
In the case of Cole v. Roach, 37 Tex. 413, it was held that a gin stand, not attached to the realty, though used for the purpose of the farm, is not a fixture.
Hancock v. Jordan, 7 Ala. 448, 42 Am. Dec. 600; Wade v. Johnston, 25 Ga. 331.
If appellee required the gin plant of Johnson for its security it would have been simple enough to have so specified in its mortgage. We submit that the gin stands and machinery in this case are not a part of the realty, that appellee's mortgage does not cover them and that the trustee's deed did not pass any title thereto.
American Laundry Machinery Company v. Citizens National Life Insurance Company, 65 So. 133, 107 Miss. 108.
F.E. Everett, of Indianola, for appellee.
The gin plant, which was described in the application for the loan and which belonged to W.W. Johnson at the time and which was taken into consideration when the loan was granted, is a part of the realty, subject to the trust deed given by Johnson and his wife, to the Union Central, and title thereto passed to the Union Central Life Insurance Company when this mortgage was foreclosed.
Holly v. Milling Company, 197 P. 731; First National Bank of Arcadia v. Labit (La.), 109 So. 400; Richardson v. Borden, 42 Miss. 75; Frederick v. Smith, 111 So. 847.
Whether an article is personal property or a fixture, must be determined by taking into consideration its nature, mode of attachment, purpose for which used, and the relation of the party making the annexation, and other attending circumstances indicating the intention to make it a temporary attachment or a permanent accession to the realty.
Weathersby v. Sleeper, 42 Miss. 732; Richardson v. Borden, 42 Miss. 75; Perkins et al. v. Swank et al., 43 Miss. 349; Tate v. Blackburn, 48 Miss. 1.
William E. Johnson and wife executed a deed of trust on a cotton plantation to the Union Central Life Insurance Company to secure an indebtedness by them to it. There was then on the plantation a fully equipped cotton gin; the gin stands being attached to the floor of the building in which they were situated by removable bolts and screws. This cotton gin was not specifically described in the deed of trust. Some time after the execution and recording of this deed of trust, another deed of trust on the plantation was executed by the Johnsons to the Sunflower Bank, of which there were several subsequent renewals. This deed of trust described the plantation generally, and specifically the cotton gin situated thereon.
The question presented for decision is whether the deed of trust to the Union Central Life Insurance Company covers the gin stands composing a part of the cotton gin thereon. The court below held that it does. If the gin stands are classed as fixtures, they are covered by the appellee's deed of trust. Whether an article or structure is a fixture, and therefore part of the realty to which it is annexed, is a question of fact determined primarily by the intention with which it was annexed. This intention usually is to be gathered from the circumstances surrounding the annexation and the interest in the realty of the person by whom the annexation was made. One sometimes controlling circumstance where the annexation was made by the owner of the realty is whether the article was annexed for the more convenient and profitable use of the realty itself, for the general purpose for which a person making the annexation intended to use it. 26 C.J. 654; Tate v. Blackburne, 48 Miss. 1; Perkins v. Swank, 43 Miss. 349; Weathersby v. Sleeper, 42 Miss. 732; Richardson v. Borden, 42 Miss. 71, 2 Am. Rep. 595; American Laundry Machinery Co. v. Citizens' National Life Insurance Co., 107 Miss. 108, 65 So. 113; Boone v. Mendenhall Lumber Co., 97 Miss. 554, 52 So. 584.
The gin stands here in question were placed on the realty by the owner thereof for the purpose of ginning the cotton raised on the plantation; a convenience certainly, though, if the cotton could be ginned elsewhere, not absolutely a necessity for that purpose. The exact question here presented was decided in Richardson v. Borden, supra, wherein the court held the gin stands to be a part of the realty. That case is controlling here, even if we doubted its soundness, which we do not.
It appears from the agreed statement of facts that the gin was also used by the owner of the plantation for commercial purposes, that is, cotton belonging to others was ginned thereat, more of such cotton being ginned than was raised on the plantation. This fact alone does not change the rule. We are not confronted with a case wherein the owner of land operates a cotton gin thereon primarily for commercial purposes and uses it incidentally to gin a small amount of cotton raised on other land composing a part of the tract on which the gin is situated, for such is not the case here. We therefore express no opinion on what the rule in that character of case would be.
Affirmed.