Fine v. Bradshaw

VAN DYKE, P. J. This is an appeal from a judgment quieting respondent’s title to certain personal property. Respondent is the former owner and operator of a sawmill situated on property which he held under lease which contained a provision that upon its termination respondent could remove the machinery and equipment constituting the mill. The expiration date of the lease was November 30, 1952. On September 17, 1951, respondent made a written agreement to sell the mill to a Mrs. Eubanks for the sum of $8,683.54, payable semimonthly at the rate of $2.50 per thousand board feet of lumber sawed. The trial court found that the contract of sale was a conditional contract with title reserved to the seller until the purchase price had been paid. Eubanks failed to make the payments called for, but while in possession became indebted to appellant and a Mr. Koss for wages and money advanced. On December 11, 1951, Eubanks mortgaged the property to appellant and Koss. This mortgage the trial court held to be invalid and the propriety of this holding is here presented. It is unnecessary to determine the question. We will assume it to have been valid. In July of 1952 Eubanks left the mill, and though the record is not clear as to why and under what conditions he did so, appellant took over its operation and continued to hold possession. Between August 11, 1952, and October 15, 1952, appellant either paid to respondent or for his benefit to the federal government, which held tax claims against respondent, the sum of $2.50 per thousand of board feet of lumber sawed. Appellant contended and still contends that these payments were on the Eubanks contract. Respondent maintained at all times that such payments constituted rent only and respondent refused to recognize appellant as occupying the status of a purchaser under the Eubanks contract which respondent claimed to have terminated for default even prior to the execution of the chattel mortgage by Eubanks. Appellant and Koss foreclosed their chattel mortgage and on August 16, 1952, appellant alone bid in the property at a foreclosure sale. The notice of sale recited that the sale would be made subject to any sums owing to respondent under the Eubanks contract. On September 12, 1952, a writ of execution issued upon a third party’s judgment against respondent and the sheriff made levy upon all money due respondent from appellant, and in particular upon all sums owed by appellant to respondent under the contract with Eubanks. On October 15th following a sale was held and appellant bid the property [864]in for $348.05. Thereafter he refused to make any further payments to respondent, whether for rent or for contract payments, claiming that by the foregoing happenings he had become the owner of the mill. Respondent thereafter brought this action.