Sampson v. Tangye

[735]

DORAN, J.

The plaintiff herein, owner of certain real property in Tulare County, on July 30, 1951, purchased on conditional sale contract, four wind machines, three of which are involved in the present controversy. These wind machines, designed for the purpose of preventing frost damage to citrus fruits, were installed by the seller, National Frost Protection Company, on plaintiff’s real estate, and were securely fastened to a concrete base by bolts embedded therein.

Several months thereafter, namely, on February 28, 1952, plaintiff sold the real property to defendant Tangye, who received possession of both the real property and the wind machines, plaintiff transferring all rights therein. As a part of the purchase price Tangye executed a promissory note and trust deed to plaintiff and agreed to keep up the payments on the conditional sale contract. Plaintiff Sampson assigned the trust deed and note to one Schneider who in turn transferred the same to the appellant Stoner. Thereafter, by reason of Tangye’s default, Stoner foreclosed the trust deed and obtained title to the real estate. It is alleged in the complaint, and the trial court found that at the time of the assignment of the trust deed to Stoner, the latter “had constructive notice and knowledge of the said conditional sale contract and . . . that said wind-machines were not fixtures, but, on the contrary, were personal property owned by the said (seller) corporation.”

In plaintiff’s complaint for declaratory relief and for possession of the wind machines, it is alleged and the trial court found that at the time of the sale by plaintiff to Tangye, there was a balance due on said wind machines of $7,399.50, of which $3,699.75 was paid by Tangye, and that at the time of filing this action there was still due and unpaid upon the conditional sale contract, the sum of $3,699.75.

Subsequent to the transfer to Tangye but before the filing of action, and on February 17, 1954, plaintiff paid the balance due on the wind machine contract, and on March 29, 1954, plaintiff took an assignment of the conditional sale contract from the seller, National Frost Protection Company. Judgment was granted against both Tangye and Stoner for possession of the wind machines or the sum of $3,699.75; a money judgment in that amount was ordered against the defendant Tangye. The present appeal is by Stoner who had foreclosed the trust deed and obtained title to the real estate.