Hubbard Kelsey, Appellant, v. Smith Lyon, Respondent

Hubbard Kelsey, Appellant, v. Smith Lyon, Respondent. (Argued October 16, 1884; decided October 31, 1884.) This was an action for the conversion of certain machinery-in a planing mill. Plaintiff claimed title under a chattel mortgage from one Matthias. Matthias had a mortgage upon the premises, upon which the planing mill was located. The mortgagors executed to him a bill of sale of the personal property in the mill, not including the machinery in question, which they considered as part of the realty, and put him in possession of the real estate. He subsequently foreclosed his mortgage and bid in the property. Thereafter he executed the chattel mortgage. The real estate was afterward sold upon foreclosure of a prior mortgage held by defendant, who became the purchaser and entered into possession. The court say: “ The plaintiff’s title to the machinery was derived from the chattel mortgage'of Matthias and is dependent upon it. If that machinery was so annexed to the realty as to become parcel of it, Matthias acquired title by the foreclosure of his real estate mortgage, but subject nevertheless to the prior mortgage, the foreclosure of which cut off and destroyed his lien and resulting title. The appellant avoids this difficulty only to encounter another. He argues that the machinery was personal property, but if so, Matthias got no title by foreclosure of his real estate mortgage and never acquired one in any other -way.” Robert C. Titus for appellant. Henry M. Hill for respondent. [MAJORITY — Finch, J.,] Finch, J., reads for affirmance. All concur. Order affirmed and judgment absolute against plaintiff on .stipulation.