Trappes v Harter and Forth
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1833 |
| Date | 01 January 1833 |
| Court | Exchequer |
English Reports Citation: 149 E.R. 712
EXCH. OF PLEAS.
S. C. 3 Tyr. 603; 3 L. J. Ex. 24. Explained, Ex parte Barclay, 1855, 5 De G. M. & G. 413. Considered, Cullwick v. Swindell, 1866, L. R. 3 Eq. 253. Referred to, Boydell v. M'Michael, 1834, 1 C. M. & R. 178; Waterfall v. Penistone, 1856, 6 E. & B. 885; Reynolds v. Ashby, [1904] A. C. 466. See also In re Nutter; Ex parte Cotton, 1842, 2 M. D. & D. 725.
trapfes v. barter and forth. Exch. of Pleas. 1833.-In January, 1797, several persons carried on business in partnership as calico printers; and in the same month certain premises on which their works were principally carried on were conveyed to one of the partners in fee. The conveyance mentioned the premises to consist, besides land, of dwelling-houses, machine-house, and other buildings and erections, and stated them to be then in the possession of the partner to whom they were conveyed and another partner. Various buildings and machines were afterwards, from time to time, erected on the premises by the firm, for the purpose of extending the works. The whole was firmly fixed to the freehold, arid stood on that part of the land which was conveyed to one of the partners in 1797; but the part in question could be removed without material injury to 1 the buildings. In the different stock-takings of the firm, the land and buildings were always valued and classed separately from the machinery and fixtures. Iti SO. Sffl. 154. TRAPPES ?'. HARTER 713 the part of the country where the premises were situated, machinery of this description was constantly bought and sold distinctly from the freehold. The freehold in the premises having been subsequently conveyed to two of the partners, they, in 1828, mortgaged them to the plaintiff's wife, under the description of all the messuages, dwelling-houses, lands, and buildings therein mentioned; "and also, all that and those the steam-engine, mill-gearing, heavy gear to millwright work, fixed machinery, and other matters arid things, &c., then standing and being in ^a.nd upon the thereby demised buildings, works, and premises, which in any manner constituted fixtures and appendages to the freehold of the same or any part thereof." All the machinery, fixtures, &c., appeared to have been in the reputed ownership of the partners who earned on the works until 1831, when they became bankrupt, and the defendants were appointed their assignees. The plaintiff, who was the husband of the mortgagee, had inspected statements of the affairs of the partners, which treated the machinery as not included in the mortgage, and had made no objections to such statements. In the month of April, 18;! 1, the assignees sold all the machinery and fixtures, with the exception of two steam-engines, two water-wheels, an iron flooring, and other small articles ; and the greater part of them were removed by the purchasers. The articles claimed by the mortgagee were all firmly fixed to the freehold, in such a manner, however, that they might easily be removed without material injury to themselves or to the buildings : -Held, that the machinery did not belong to the inheritance, but was part of the personal estate of the bankrupts, and that it passed to the assignees; arid that the machinery in question was not intended to pass, and did not pass, to the mortgagee, under the mortgage deed. [S. C. :i Tyr. 603; :i L. J. Ex. 24. Kxplained, Kx parte Barclay, 1805, 5 De G. M. &G. 413. Considered, (Jullwidt v. Swindell, 1866, L. K. 3 Kq '253. Referred to, Hoydell v, M'Michael, 1:)4, I C. M. & R. 178; Waterfall v. Penixtane, 1856, 6 E. &B. 885; Reynolds v. Axhln/, [1904] A. G. 466. See also In re Nutter; Ex parts Gotten, 1842, 3 M. D. & D. 725.] This was an action against the defendants for an injury done by them to the plaintiff's reversionary interest in cer-[154]-tain closes and buildings at (rarstang, in the county of Lancaster, in the possession of Joseph and Jeremiah Fielding, as tenants to the plaintiff, in taking away certain engiriea, machines, utensils, fixtures, and things affixed and fastened to the said closes and buildings. The second count was like the first, except stating the possession to have been in the defendant. The third count was in trover. At the trial, before Patteson, J., at the Lancaster Spring Assizes, 1832, a verdict was found for the plaintiff for 10,0001., the damages in the declaration, subject to the opinion of this Court upon the following case:- , The plaintiff, au attorney, residing at Clitheroe, in the county of Lancaster, is the mortgagee of certain freehold premises from Joseph Fielding and Jeremiah Fielding, caiico printers, at Catterall, in the parish of Gtarstung, in the county of Lancaster, who have become bankrupts since the mortgage. The defendants are their assignees, aijd as such have sold and removed the machinery affixed to the premises ; which is the injury complained of. The business was formerly carried on under the firm of "(Henry Fielding and brothers," Henry Fielding being the principal partner. The works were extremely extensive, and were carried on partly on premises held under lease from Sir John Shelly, and partly on freehold premises. In January, 1797, the partners were Henry Fielding, William Myers, Benjamin Fielding, and Joseph Fielding, and, in that same month of January, certain premises, called the Adamsons, on which tte works in question principally stand, were conveyed by one John Wakefield to Heury Fielding in fee, by lease and release, dated the 12th and 13th of January, 1797. This conveyance mentions the premises to consist of, besides land, dwelling-houses, machine house, and other buildings and erections, then in the possession of Henry Fielding and William Myers. At the time of this purchase the concern was indebted to Henry [155] Fielding in a much larger sum than the purchase money ; but the premises, though conveyed to Henry Fielding alone, were used and considered by the firm as partnership property. Some additional purchases were made, and various buildings were erected on the premises from time to time for the purpose of extending the worka. In the different stock-takings, commencing in 1804, and ending in 1825, Ex. Drv. v.-23* 714 TRAPPES V. HARTER 2 C. & M. 156. the landa and buildings are denominated the Catterall Plant, and are valued and classed separately from the machinery and fixtures. No distinction was made between the machinery on the freehold and leasehold premises, either in the stocktakings, or in the repairs or alterations that were made from time to time. The stock-takings were annually signed by all the persons interested; and, until the year 1811, they are ;in the handwriting of Henry Fielding. From 1804, until the death of Henry Fielding, on the 9th of October, 1816, the partners were Henry Fielding, Joseph Fielding, Jeremiah Fielding, James Fielding, and Kdmund Margerison. Henry Fielding left a widow, one son, and three daughters. The surviving partners carried on the business after his death, under the firm of Henry Fielding & Brothers, for the benefit of themselves and the widow and children, until the 1st of July, 1825, when the co-partnership ceased. The stock-taking in 1816 was signed by Susannah Fielding, the widow, by the surviving partners, and by Mary and {Susannah Fielding, two of the daughters; that of 1817, by all the same parties. Those of 1818, and 1819, by the partners and the two daughters only. The stock was not again taken till 1823, when it was signed by the same parties as the last. The stock taken in 1824 was signed by the same parties, with the addition of Henrietta Fielding, another of the daughters. The stock-taking in 1825 was signed by the same parties as in 1824: this was the last stock-taking. In taking the account at the dissolution in 182D, the lands and buildings, as well as the ma-[156]-chiuery and stock, were considered as partnership property. Edmund Margerison then left the concern, and took with him a considerable Bum of money as his share. The share of the widow was estimated at 11,6551. 16s. 3d., and was left at interest in the concern, which was carried on by Joseph, Jeremiah, and James Fielding, still under the firm of Henry Fielding & Brothers, until their stoppage in August, 1829. On the 24th of January, 1826, Henry Borroii Fielding, being then of age, as the son and heir of Henry Fielding, conveyed all the freehold premises and buildings to Joseph and Jeremiah Fielding, no mention being made of the machinery or fixtures. On the 1st of January, 1828, Joseph and Jeremiah Fielding conveyed for a term of 1000 years, by way of mortgage, to secure the said sum of 11,(5551. 1 Gs. 3d., with interest at 41. l()s. per centum per annum, to Mary Fielding, the eldest daughter of Henry Fielding, as the executrix of her mother, who was then dead, all the messuages, tenements, dwelling-houses, lands, and buildings thereinbefore mentioned (being the same which were conveyed to them by Henry Borron Fielding, in 1826); "and also all that and those the steam engine, mill gearing, heavy gear to millwright work, fixed machinery and other matters and things erected and then standing and being in or upon the said thereby granted andidemised buildings, works, and premises, which in any manner constitute fixtures and' appendages to the freehold of the same, or any part thereof, together with all and singular houses, outhouses, edifices, buildings, warehouses, workshops, engines, barns, stables, yards, gardens, meadows, woods, underwoods, hedges, ditches, fences, ways, waters, watercourses, rivers, streams, brooks, dams, and falls of water, paths, passages, lights, liberties, easements, privileges, profits, commodities, advantages, emoluments, hereditaments, and appurtenances whatsoever, to the said hereditaments mentioned to be thereby granted and demised, belonging or in any-[157]-wiHe appertaining." This mortgage (which it was agreed should be taken to be part of the...
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