POSSESSION OF A TENEMENT.

Gisborne Times, Volume XXXV, Issue 3804, 15 April 1913, Page 7

POSSESSION OF A TENEMENT.

MACKRELL v. HALL. / JUDGAI.ENT FOR PLAINTIFF. VALUE ASSESSED AT £7o.' At the Supreme Court yesterday tha Registrar, Air. W. A. Boat, n, S.M., read the following judgment by His Honor Mr. Justice C-oper in't o case of Martha Mackrell (Mr. Arnold) v. _ Frederick Hall (Mr. Nolan), the claim being for possess! n of a bn filing in Paimerstcn Road or its value, £IOO, or £1 damages for detention;— _ His Honor said thp question GO decision by the Court m this case was whether a wooden structure of three rooms, with a veranUih, and ayiiieh the defendants had, it was alleged, prevented the plaintiff from renr vi 'g from i ertain land mortgaged by the plaintiff’ to the defendant, and of which land the defendant was now the owner, was a personal chattel, cr whether it, under the circumstances proved at the trial, passed to the defendant when he acquired the owner.-hip of the land.

Tlie plaintiff was in December, 1903, tlie registered proprietor. In that month she mortgaged th© land (allotments 272 and 273, Gisb me) to the defendant. In September, 1905, she executed a, second mortgage to the defendant and a Air. Harding. The first mortgage to Hall coveied any future advances which might be mode by Hall. There was at the time up n the land a permanent building, which was afterwards occupied by a ALs. Garnett as a boarding-house. About the year .1907 the plaintiff borrowed from Hall a sum of £75 for the purpose of erecting upon the land a small building of throe rooms. This money was to be repaid by instalments. The building was to be erected and was affixed to the land. It was divided into three rooms, each having a door opening from the outs.de. It contained no chimney or fireplace, but was fastened by flails to bo ks sunk into the'land. The plaintiff has sworn that she has repaid the £75, and no evidence has been called to contradict her evidence.

Later on, some time in 1907, she caused the building to lie bodily removed from the blocks and placed upon two runneis or sledges, connected by cross-bars, her object, she states, bring to remove the building to another property owned hy her at AVainui Beach. She did nut do so, as her tenant, Mrs. Garnett, she. states, desired to uti-ise,- the building for bedrooms. The building while on these sledges or runners was completely turned round, shifted some feet from its original position, and placed on the runners partly on section 272 and partly on section 273. Its weight did not- cause the runners to sink into the ground. In so converting tlie building into a chattel the plaintiff did not consult tile defendant Hail as first mortgagee, or Hall and Harding as the second mortgagees. As both Hail and Harding were residents of Gisborne, tlie piesumption, how.:ver, is that they were a were of what had been done.

In Alar.li, 1909, the mortgages to Hail and to Hall and Harding appear to have been paid off. Discharges of each of these mortgages were registered on the 9th Alarch. On the same date a first mortgage of the land to Alessrs. Hall and Sheet was registered. On the 13th Alarch a second mortgage to the defendant Hall was register CL When cue plaintiff caused the building: to be sodbrrd from the freehold and to beer,me in fact a. chattel, she was undoubtedly interfering with the rights of the then mortgagees, as tlie budding, being then an undoubted fixture. had become, although erected after the date of the mortgages, a part of the mortgage securities, but no steps were taken to prevent her doing so, although the presumption is, as J have stated, that the then mortgagees must have been aware of what she was doing. Probably the reason was that as Mali was first mortgagee, and also o»« °f_ the second mortgagees, and as the £75 advanced for the'erection of the building by him had been paid off, ho, as first mortgagee, and himself and Harding- as second mortgagee, were content with tlm security of the land and tin- original buildings. The diseiiarge of both these mortgages in 1909, however, put an end to any right which . the mortgagees had to complain of the plaintiff’s action in altering the nature of the building from a fixture to a. chattel.

A few days after the mortgage to Hall and Sheet was registered, a second mortgage to the defendant- Hail was executed by the plaintiff -and registered as I have stated on the Kith March, 1909. This mortgage w?s to secure moneys advanced to the plaintiff, and also moneys due by the plaintiff st husband to Hall. She also executed a bill of sale in favor of Hall .as collateral .security over certain specific chattels. The -structure was not included.

After these mortgages the tenant ol the boarding-house complained that, the doors opening into the rooms of the structure required protection Rom the weather, and a rough verandah was erected. This veranda}) has no floor. The verandah was not painted. I have inspected it/ and it is a rough device to 'keep- the rain and weather from the doors of the three rooms. Since the verandah was; erected nad scrapings have been pla ed ( n the earth beneath the verandah and a lit-t-'o bey-ond it, and where the blocks are the depth of this material is about 8. inches. This was for the. purpose <:f giving a drier access to the doors of tho structure.

The defendant Hall, as second mortgagee, the plaintiff being in default under that mortgage, duly applied to the Registrar of this Court to sell the mortgaged property under his mortgage, and the. sale was advertised for the Bth June, 1912. The plaintiff, owing to ill-health, had been for some months living in Auckland. She came t-o Gisborne early in June, obtained a postponement of the date for the safe, and endeavored to arrange the .natter with Hall, but without success, and tho land was sold by the Registrar to Hall on the- 15th June, ami a transfer to him was registered on the lUli July. On tho 20th June she sen+Hhr ugh her then solicitors, Messrs. Kirk, Barnard, and S-evwnghr, to Hah a wiltten request for. inter alia, the delivery to her of the structure. On tho oth August she served upon him, tlrcu-g.'i Messrs. Hutchison and Arnold, a formal demand for the structure, stating that she would arrange to remove it without injury to the property on which it was. Tho defendant refused to allow her to do so, and claimed that it b -h nee:! to him as tho purchaser through the Begirt bar of the mortgaged land. His counsel, while admitting that at tlfe time of the •execution of the mortgage of March, 1909, the structure was a chattel, submits that it became, by the erection of the verandah, alii-: -“ to tho freehold, and passed to the defendant Hall by tie. -Keg:-''tear r tiani-j----for to him. “In my opinion,” continued IBs Honor, “t. have really to cmis-ide* whether the verandah, was. it' elf a. fixture. If it was not, then it could not operate to annex the tliroc-roomed structure to the land. For what, purpose, then, was the verandah erected ? I do not think it can be said to have been more than merely an accessory to: the better enjoyment, of. the chattel, and onlv for so long a time as the chattel was being used for that puipose. Indeed, the evidence is- that it would not last the life of the main structure, and tho main structure was, before the ye nod'h was put up, clearly merely a chattel. As, therefore, in my ( pinion, Mu- verandah itself was merely accessory to the chattel, and not accessory t-o the land, it

did not become a part of tho land, and therefore its annexation could not alter the character of the structure.. ‘ The plaintiff asks for judgment for possession of the structure or for £IOO, its alleged value, if possession cannot be had anel damages lor its detention. I give judgment- f r_p.-s. ession and assess its value at £7O No evidence beyond nominal damage ior its detention lias been, gi_v.cn. I assess the damage far detention at the sum of £l. The plaintiff must have hrr costs on the lower scale. Ido not allow any costs for second.- counsel. The case Nook a part of two day , but could easily have born concluded in one day, and Mr. Hutchison appeared for the first half dav and Mr. A > nVd for the second. Witnesses’ expenses and Court fees must be ascertained'by the Registrar.