In Denvir v. Crowe, 321 Mo. 212 [ 9 S.W.2d 957], an organ installed in a residence in a brick room built on for its receipt was regarded as a part of the building.Summary of this case from M.P. Moller, Inc., v. Wilson
October 6, 1928.
1. REAL ESTATE: Fixture: Pipe Organ. An Aeolian pipe organ was installed in a large four-story brick residence for the permanent use of the owner and his family. A window in the music room was taken out, the wall removed, a false jam put in, and a room, nine by ten feet, was built of concrete blocks on the outside against the wall. The keyboard was inside the music room, and was attached to the console or case and to the jam by screws. The organ was placed in the concrete room, and rests on the foundation; it is not secured or nailed down, but is so heavy that it is kept in place by gravity. The pipes stand on racks known as chestwork, which is made of wood and fastened to the foundation frame upon the floor. Held, that the organ, having been installed for the use and enjoyment of the owner of the residence and his family and affixed to the building, is a fixture and should be regarded as a part of the building.
2. FIXTURE: Severance by Conveyance: Exception. Notwithstanding a pipe organ is a fixture and a part of the family residence, it can be severed therefrom and separately conveyed by a deed made by the owner of the premises, or reserved from such conveyance, and is constructively severed by a deed which expressly excepts the fixtures, or by deeds which expressly except it by name.
3. TRUST ESTATE: Devise by Beneficiary: Before Distribution: Inheritance: Exception of Fixture: Conversion. The testator devised all his property to trustees, who were to pay the net income to his wife during her life and at her death make distribution of the remaining estate. They were required to divide the estate into as many equal portions as he had children, and at the distribution one portion was to go to each surviving child; if a child had died leaving descendants, his portion was to go to them; if he left no descendants, his portion was to go to his wife. The widow died, and four months later a son died leaving an only child seven years of age, and a few months later this infant child died. The son before his death, by his will, in which he mentioned his infant child, devised and bequeathed his entire interest in the estate to his wife, the plaintiff. A distribution of the estate was made four or five months after the death of this son, and defendant contends that it was made before the death of the infant child, and that in consequence the portion of the deceased son had already gone by the original will to this infant daughter, and did not by the son's will go to his wife, the plaintiff. A few days after the distribution was made, the surviving trustee conveyed to the plaintiff and the two remaining beneficiaries of the trust estate, the testator's residence premises and the improvements, horses, cows, other live stock and chattels, "Constituting the entire equipment" of the property, "but not including the household furniture, fixtures and other equipment which have heretofore been divided by voluntary partition and agreement between all the beneficiaries of said trust." Among the "fixtures" was a pipe organ, and at the meeting at which the distribution was made it was allotted to plaintiff. These three beneficiaries or grantees thereafter conveyed the premises "except the pipe organ installed in the brick residence thereon," and in the deed declared that it was "understood and agreed that the pipe organ is and shall be the property" of the plaintiff, "one of the parties of the first part, and the parties of the second part, by accepting this deed, agree and covenant" that the said plaintiff, "her successors and assigns, shall have the right to enter upon said premises and to take possession of and remove said organ;" and with that exception in all the intermediate deeds, the premises, by mesne conveyances, passed to defendant, by warranty deed, which contained no exception, but all the preceding deeds had been recorded, and there is substantial evidence that defendant had actual knowledge of the exception of the organ and of plaintiff's reserved right to enter and remove it, before he paid for the premises. He went into possession, and refused to surrender the organ, upon written demand, claiming that he had a warranty deed with no exceptions. Held, that it is immaterial whether distribution had been made before the death of the infant daughter of the son who was deceased at the time it was made. If she was then alive and took under the original will, it would avail defendant nothing as against plaintiff, her mother, since plaintiff was her sole heir and succeeded to whatever interest she may have had in the estate. Held, also, that plaintiff is entitled to recover in an action of trover the value of the organ.
4. ____: Severance by Mutual Agreement. Tenants in common in the ownership of residence property can by mutual agreement sever a pipe organ or other fixture from the real estate, by allotting it to one of them.
5. ____: Constructive Severance. An exception of a pipe organ or other fixture from a residence in a deed by which the owners convey the premises, reserving the right to enter and remove it, is a constructive severance.
6. CONVEYANCE: Recitals of Exceptions. The grantee is bound by recitals of exceptions contained in recorded deeds under which he claims title. If such deeds except fixtures from the real estate conveyed by them, the grantee is not their owner. And particularly so where he has actual knowledge that they have been excepted from the grant.
7. TROVER: Severance of Fixtures: Conversion. The severance of a fixture from real estate, whether actual or constructive, makes it personalty, and renders it a proper subject of trover. And the grantee in possession of residence property, who refuses to surrender a pipe organ which has been excepted from the premises in all the prior deeds in his chain of title except his own immediate deed, is liable for conversion, as for damages, in an amount equal to the value of the fixture thus severed.
Corpus Juris-Cyc. References; Estoppel, 21 C.J., Section 68, p. 1088, n. 91. Fixtures, 26 C.J., Section 10, p. 661, n. 83; Section 68, p. 691, n. 76; Section 69, p. 692, n. 83; Section 126, p. 734, n. 59. Trover and Conversion, 38 Cyc, p. 2094, n. 32.
Appeal from Circuit Court of City of St. Louis. — Hon. Franklin Miller, Judge.
Virginia J. Booth, James Booth and Joseph C. McAtee for appellant.
(1) The evidence being that plaintiff had no possession at the time of the alleged conversion, the burden was on her to prove her actual title to the organ in controversy. Sullivan v. Fanth, 199 S.W. 1116. (2) The organ having been installed in a room specially built for it by the owner, being specially adapted to the room in which it was placed, being for the permanent use and enjoyment of its owner, and being affixed to the building, constituted it a fixture and integral part of the realty. Crane Co. v. Const. Co., 121 Mo. App. 219; Tyler v. White, 68 Mo. App. 610; Thomas v. Davis, 76 Mo. 72; Rogers v. Crow, 40 Mo. 92; Chatman v. Ins. Co., 4 Ill. App. 32; 26 C.J. 657. (3) The donee of the power conferred by the will of C.B. Parsons was confined, in his selection, to the objects or class named, and an appointment by him contrary to the power was void. 31 Cyc. 1065. (4) The will having conferred a power on the trustees to make distribution equally among the children of C.B. Parsons upon the death of his wife and providing that the child of a deceased child should take the share of its parent, the act of the trustee in distributing and awarding the organ in question (if it be a fact that it was so awarded) to plaintiff at a time when the daughter of Roscoe Parsons was still living, was void and vested plaintiff with no title to the organ. Arnold v. Brockenbrough, 29 Mo. App. 625; 31 Cyc. 1059, 1146; Von Behrn v. Stoepplemann, 226 S.W. 785. (5) Under the will of C.B. Parsons his son, Roscoe Parsons, became vested with a contingent remainder in the property of his deceased father, and upon the death of Roscoe, leaving a daughter living, that daughter became vested with a remainder in said property — which could not be divested by any act of the trustee in contravention of the terms of said will. Collier's Will, 40 Mo. 287; authorities under points 2, 3, 4. (6) Plaintiff never had or took possession of the organ and, as a result of failure to take or have possession, had no title to the organ even under her own evidence. Sec. 2278, R.S. 1919; Layson v. Rogers, 24 Mo. 192; Pattison v. Litton, 56 Mo. App. 335. (7) The organ, having never been legally severed from the freehold, trover would not lie. 38 Cyc. 2015; Land Gravel Co. v. Commission Co., 138 Mo. 439. (8) In actions for conversion a new trial should be granted where the finding is excessive. The finding should be such as is necessary to meet the end of justice. 38 Cyc. 2104.
Carter, Jones Turney and Robert Burkham for respondent.
(1) Under the will of Charles B. Parsons, upon the death of his widow, the right to a distributive share immediately vested in his son, Roscoe Parsons, who was then living, and upon the death of Roscoe Parsons his interest in the estate passed to plaintiff, his wife, as the sole beneficiary under his will. Hutcheon v. Mannington, 1 Vesey, Jr. 366; Green v. Irvin, 274 S.W. (Mo.) 684; Collier's Will, 40 Mo. 287; 40 Cyc. 1662. (2) Even if (contrary to the fact) Roscoe Parsons' child died after the distribution, since it was a minor and therefore could not have made a will, and since the record shows it was an only child, the mother has succeeded to all the child's interest in the C.B. Parsons estate. (3) Appellant is bound by the covenants in his own chain of title, and estopped to deny them. (a) A covenant in a deed is binding upon the grantee if the deed is accepted by him. 15 C.J. 1211; Porge v. Railway Co., 24 Mo. App. 199. (b) Such a covenant binds the grantee's successors in title. 7 R.C.L. 1100; Sharp v. Cheatham, 88 Mo. 498; Stoutimore v. Clark, 70 Mo. 471; Hasenritten v. Kirchhoffer, 79 Mo. 239. (4) The organ, even though perhaps originally a fixture, had been constructively severed by agreement and had become personal property. (a) The parties may lawfully agree that a fixture shall be or shall become personal property. 26 C.J. 676; Bronson, Fixtures, 133; Hines v. Ament, 43 Mo. 298; Goodman v. Railroad, 45 Mo. 33; Lowenberg v. Bernd, 47 Mo. 297; Priestly v. Johnson, 67 Mo. 632; Nieswanger v. Squier, 73 Mo. 192; Brown v. Turner, 113 Mo. 27; Kuhlman v. Meier, 7 Mo. App. 260; Gregg v. Railway Co., 48 Mo. App. 494; Cox v. McKinney, 258 S.W. 445; Pile v. Holloway, 129 Mo. App. 593; Muehling v. Magee, 168 Mo. App. 675; Clay Machinery Co. v. Brick Co., 174 Mo. App. 485. (b) Agreements respecting the character of fixtures are binding not only upon the parties but upon subsequent purchasers having notice, either actual or constructive. 26 C.J. 681; Priestly v. Johnson, 67 Mo. 632; Pile v. Holloway, 129 Mo. App. 593; Muehling v. Magee, 168 Mo. App. 675; Clay Machinery Co. v. Brick Co., 174 Mo. App. 485; Cox v. McKinney, 258 S.W. 445. (c) Where an article is assigned the character of personal property by agreement (express or implied) the mode of its affixation is immaterial. Kuhlman v. Meier, 7 Mo. App. 260; Clay Machinery Co. v. Brick Co., 174 Mo. App. 485. (d) It is immaterial whether the agreement that the article shall be treated as personal property is made at the time of its installation or subsequently. Bronson, Fixtures, p. 133. (e) The organ has been made personalty by constructive severance. 26 C.J. 591, 691, 727; Bronson, Fixtures, p. 119. (f) Trover is the proper remedy in such a case as this. 26 C.J. 734; Nieswanger v. Squier, 73 Mo. 192; Pile v. Holloway, 129 Mo. App. 593; Clay Machinery Co. v. Brick Co., 174 Mo. App. 485. (5) (a) Sec. 2278, R.S. 1919 (relied upon by appellant), is inapplicable, for: The statute in terms is limited to "gifts" and there was no gift in this case; (b) Plaintiff was in legal possession of the organ; (c) Her title appears in recorded instruments.
This action was instituted December 29, 1922, by the respondent, formerly Mrs. Roscoe R.S. Parsons, in the Circuit Court of the City of St. Louis, for damages for the conversion of an Aeolian pipe organ, the damages being laid at $10,000. The answer is a general denial. A trial to the court without a jury resulted in a finding and judgment for plaintiff in the sum of $8000, and defendant appealed.
The evidence is in substance as follows:
Mr. C.P. Parsons, actively connected with the St. Joseph Lead Company, had lived with his family in a large brick residence at Riverside, Jefferson County, Missouri. He bought and installed the organ in this building in 1906. The price paid was $6000. The instrument consists of the organ proper and the console, which is the case around the keyboard. The console is attached to the keyboard by two screws. A window in the outside wall of the music room was taken out, a part of the wall removed, a false jam put in, and a room, nine by ten feet inside measurement, was built of concrete blocks on the outside of and against the wall. The organ was installed in this concrete room and rests on the foundation. It is not secured or nailed down. The pipes of the organ stand in racks upon what is known as the chestwork, made of wood, which is fastened to the foundation frames upon the floor. In front of the organ is a grill work attached to the building. It is no part of the organ. The keyboard is in the music room.
Mr. Parsons died, testate, in 1910, survived by his widow, two sons and three daughters. He made certain specific bequests, leaving the residue of his estate to his widow and his two sons Roscoe and Gerard and to the survivors or survivor of them, as trustees. The trustees were to pay the net income to his wife, Jane E. Parsons, during her life and make distribution of the estate at her death. They were required to divide the estate into "as many equal portions as there are children or descendants (or husbands or wives) of then deceased children living at the time of distribution; the descendants or wife of one of my said children, if then deceased, being counted in place of their deceased parent."
The trustees were empowered to make division in kind or to sell and convert into cash or to divide partly in cash and partly in kind, and to place a value on any asset for the purpose of such division, and all divisions as made by the trustees shall be final and conclusive upon the beneficiaries.
Mrs. Parsons died April 29, 1915. Of the three daughters, one, Jessie H. Parsons, married Ben Blewett and died in 1914. Mr. Blewett died before the trial of this case. They had no children. The other daughters married and they and their husbands were living at the time of the trial. One of the sons, Roscoe Parsons, plaintiff's husband, died testate on August 27, 1915, four months after his mother's death. They had one child, Frances, who died in January, 1916, aged seven years. The other son, Gerard S. Parsons, who was living in January, 1916, died before this case was tried. Roscoe Parsons, by his will duly probated, after mentioning his daughter, devised his property to his widow, the plaintiff in this case.
There were numerous family meetings and discussions relative to the distribution or partition of the estate. Finally a meeting was called by Gerard S. Parsons, the surviving trustee, and held in January, 1916, to determine whether certain of the beneficiaries should buy the Riverside property and to distribute the goods and chattels at Riverside. It was agreed that the organ should go to Mrs. Roscoe Parsons, as appears by a memorandum made at the time, and the Riverside property should be conveyed to Mrs. Mabel Parsons Knapp, Mrs. Roscoe Parsons and Ben Blewett. Pursuant to this conclusion a few days later, on February 5, 1916, Gerard Parsons, the surviving trustee, executed a deed (plaintiff's Exhibit B) conveying the Riverside property to Mrs. Mabel Parsons Knapp, Mrs. Frances Parsons and Ben Blewett, with apt references to the powers contained in the will of the testator. The deed contains the following recital:
"The improvements located upon the property hereby conveyed consist of one (1) four-story brick residence at Riverside, Missouri, it being intended to convey not only the real estate hereinbefore described but also the horses, cows and other live stock and chattels constituting the entire equipment of said Riverside property, but not including the household furniture, fixtures and other equipment which have heretofore been divided by voluntary partition and agreement between all of the beneficiaries of said trust."
On July 1, 1916, Mabel Parsons Knapp, Frances Parsons and Ben Blewett, the grantees in plaintiff's Exhibit B, conveyed the Riverside property by warranty deed (plaintiff's Exhibit C) to J.D. DeBuchananne and Richard Francis, with the following recitations:
". . . except the pipe organ now installed in the brick residence located upon said property at Riverside . . . It is understood and agreed that the pipe organ aforesaid installed in the brick residence at Riverside is and shall remain the property of Frances V.H. Parsons, one of the parties of the first part, and the parties of the second part, by accepting this deed, covenant and agree that said Frances V.H. Parsons, her successors and assigns, shall have the right to enter upon said premises and to take possession of and remove said organ," etc.
The defendant read in evidence (defendant's Exhibit 3) a warranty deed dated July 31, 1917, from the grantees, J.D. DeBuchananne and Richard Francis, conveying the said Riverside property to National Farm School Vocational Training Institute, with recitations excepting the organ in the brick residence and reserving plaintiff's right to enter and remove the organ, as recited in plaintiff's Exhibit C. This grantee conveyed the Riverside property by warranty deed dated January 24, 1918 (defendant's Exhibit 5) from Richard Francis to National Farm School Vocational Training Institute, conveying said Riverside property "together with all improvements except pipe organ now installed in the brick residence," etc.
Defendant also read in evidence (defendant's Exhibit 6) a quit-claim deed dated May 31, 1919, executed by National Farm School Vocational Training Institute, conveying said Riverside property to Quick Payment Old Line Insurance Company, without exceptions. This last-named grantee conveyed the property to Richard Francis by warranty deed, dated July 3, 1919 (defendant's Exhibit 7), "together with all improvements thereon except pipe organ now installed in the brick residence," etc.
Richard Francis negotiated a sale of this property to the defendant S.H. Crowe, and tendered him a warranty deed therefor which excepted the pipe organ from the conveyance. All the foregoing deeds had been promptly filed and recorded in the office of the Recorder of Deeds, and there is substantial evidence that Crowe had actual notice of the exception of the organ and plaintiff's reserved right to enter the residence and remove the organ as recited in the above mentioned conveyances, before he paid for the property. Crowe refused the deed so tendered and thereupon Francis executed and delivered to him a warranty deed (defendant's Exhibit 8), dated August 9, 1919, conveying said Riverside property to Crowe without exception or reservation as to the organ.
The plaintiff was out of the State at the time of this conveyance and on learning that the defendant was asserting some claim to the organ, instructed her attorney to demand it from Mr. Crowe. This was done. The defendant, in a letter to plaintiff's attorney, refused to let her have the organ, saying: "I have a warranty deed . . . with no exceptions. . . . It is my intention to have it repaired, if cost is not excessive. Part of the brick wall is built around the instrument and it is surely a part of the wall."
Plaintiff instituted an action of replevin against the defendant for the organ in April, 1920, which went to trial and a voluntary nonsuit was taken. Shortly thereafter the present action was commenced.
At the trial there was evidence that the market value of the organ in November, 1920, when last examined by the witness, was $8000; that it would cost $1250 to repair it. The defendant testified that he had never had the organ examined by an expert; that he thought it was his and that he would leave it there until he was able to put it in repair and that he claimed absolute ownership by virtue of the warranty deed from Francis.
I. Appellant contends that the organ was installed in a room built for its reception and, being for the permanent use and enjoyment of the owner and affixed to the building, was a fixture, citing Rogers v. Crow, 40 Mo. 91, 96; Thomas Fixture. v. Davis, 76 Mo. 72; Crane Co. v. Epworth Hotel Constr. Real Estate Co., 121 Mo. App. 209, 218. This is apparently conceded by respondent. A room to receive the organ was built and it was installed therein. The organ is so heavy it was effectually kept in place by gravity. The keyboard was within the music room and was attached to the jams by two screws. Considering that the organ was thus installed for the use and enjoyment of the owner and his family, we have no doubt that according to the modern cases it should be regarded as a part of the building. [26 C.J. 661, and cases cited supra.]
II. Under the will of Charles P. Parsons, upon the death of his widow, the right to a distributive share vested in his son Roscoe. Roscoe survived his mother who died on Conversion: April 29, 1915. Roscoe married the plaintiff in Distribution. May, 1908, and died testate on August 27, 1915, leaving his widow, the plaintiff, and Frances, a daughter, surviving him. The evidence is that Frances died in January, 1916, at about seven years of age. Roscoe, by his will, devised all of his property to his widow. The distribution provided for in the will of C.P. Parsons was delayed for some reason and did not occur until January, 1916, after Roscoe's death. The date of the final meeting for the distribution was fixed by the plaintiff as at the end of January, 1916. Dr. Knapp testified it was in January or February, 1916. It is appellant's contention that the distribution of the property was prior to the death of Roscoe's daughter and that she and not her mother, the plaintiff, acquired the organ. This distribution was effected under the advice of able counsel, and on February 5, 1916, within a few days after the distribution, the Riverside property and all improvements, etc., thereon, "but not including the household furniture, fixtures and other equipment which have heretofore been divided by voluntary partition and agreement between all of the beneficiaries of said trust," were conveyed by Gerard Parsons, the surviving trustee, to Mrs. Knapp, Mrs. Roscoe Parsons (the plaintiff) and Ben Blewett. This deed was filed for record on April 6, 1916. The evidence is clear that at the meeting at which the distribution was made, the organ was allotted to the plaintiff. Appellant's contention that the distribution was prior to the death of the daughter Frances is unsupported by any substantial evidence. But if she were alive at that time, it would not avail appellant, since the mother was her sole heir and succeeded to whatever interest the daughter may have had in the estate. Apparently this contention was not made at the trial, but is raised for the first time in counsel's brief on this appeal. There is no merit in it.
Conceding, as we think it must be conceded, that the organ was a fixture, there seems to be no doubt that the devisees of Mr. Parsons could and did, by mutual agreement, effect a severance thereof by allotting it to the plaintiff as her property. [26 C.J. 691, sec. 68.] The conveyance by Gerard Parsons, surviving trustee, to Mrs. Knapp, Mrs. Frances Parsons, plaintiff, and Ben Blewett expressly excepted furniture, fixtures, etc., which had been divided by voluntary partition and agreement (plaintiff's Exhibit B). The conveyance of the Riverside property by the above-named grantees to DeBuchananne and Francis expressly excepted the pipe organ and provided that it should remain plaintiff's property and also contained a covenant that she might enter the premises and remove it. This exception and reserved right to remove the organ was a constructive severance of the organ from the freehold. [26 C.J. 691, sec. 69.] In the deed from DeBuchananne and Francis to National Farm School Vocational Training Institute, read in evidence by the appellant, the pipe organ is not only excepted but it is expressly recited that it is "the property of Frances V.H. Parsons" and that she may enter upon the premises, take possession of and remove said organ, etc. The appellant claims title to the Riverside property through these deeds and is bound by their recitals and covenants. [21 C.J. 1088; Tyler v. Hall, 106 Mo. 313, 319, 17 S.W. 319; Stoutimore v. Clark, 70 Mo. 471, 478; Am. Clay Machinery Co. v. Brick Tile Co., 174 Mo. App. 485, 492, 160 S.W. 902; Cox v. McKinney, 258 S.W. 445; Pile v. Holloway, 129 Mo. App. 593, 595, 107 S.W. 1043.]
The appellant bought the Riverside property with actual as well as constructive notice that the organ was plaintiff's property and of her right to enter and remove it.
"The severance of a fixture, whether actual or constructive, as making it personalty, renders it a proper subject for an action of trover." [26 C.J. 734; Neiswanger v. Squier, 73 Mo. 192, 198; Pile v. Holloway, supra; Am. Clay Mchy. Co. v. Brick Tile Co., supra, 485.]
There was substantial evidence as to the value of the organ.
The court properly overruled the demurrer to the evidence, tendered at the close of the case. The case was submitted without declarations of law. The finding of the learned trial court is supported by substantial evidence, and is accordingly affirmed. Davis and Henwood, CC., concur.
The foregoing opinion by HIGBEE, C., is adopted as the opinion of the court. All of the judges concur.