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corporation having a lien against the prop- the opera house company, had received the erty subsequent to that upon which the whole of said sum, and unjustly held the same was sold, or that under said attachment same from complainant; that Murray and lien he redeemed the property from sale, the opera house company held the rents, isand denied that the attachment lien of the sues, and profits in trust for complainant. appellee was subsequent to the judgment and attachment of O'Rourke, and denied that the appellee, under his judgment, redeemed said property from the sale to King, or from the redemption attempted to be made by O'Rourke, and denied that the attachment of Forbis was subsequent to the lien on which the property was sold on execution, and denied that Forbis redeemed from said sale or from said attempted redemption. The defendant McFarland alleged that he was in possession of the property under a lease from, and that he was paying rent to, the Grand Opera House Company. The decree of the lower court was in favor of Bender, and King appealed. On appeal, this court affirmed the judgment of the lower court, and found all the facts in favor of Bender, decreeing him to be the owner of the real property, and that King held the same in trust for him. King v. Bender, 54 C. C. A. 317, 116 Fed. 813.

In the answer to the amended bill Murray admitted the material matters of record set up in the bill, but alleged that certain property in the opera house, consisting of chairs, scenery, lamps, etc., was personal in its character, and belonged to him; alleged that McFarland was the tenant in possession of the opera house, and denied that the chairs and scenery were fixtures or annexed to the realty or necessary to its use, and denied that the Grand Opera House Company ever was the owner of such chairs, scenery, etc.; denied that McFarland procured the lease on the property through him, but admitted that McFarland had paid certain rents under said lease to the opera house company, the exact amount being at the time unknown to the defendant; denied that he had received from the opera house company the whole of said sums so paid, or that he unjustly or at all held the same from the complainant, or that he knew that In this suit the lower court appointed a the opera house company was not entitled receiver, who took possession of the proper- to said rents from said property. He then ty and collected the rents from February 1, alleged that since 1896 he had been the own. 1900. Murray had received these rents up er and in possession of the personal property to this time, and insisted that he should in the opera house, consisting of chairs, still collect them, and also claimed to be the scenery, etc., saving and excepting a few owner of the seats, fixtures, scenery, etc., certain pieces of scenery; that McFarland in the opera house, claiming this property never had any possession of such property as personalty, and not a part of the real-except as the lessee of Murray; and that ty; whereupon the court ordered that Mur- McFarland agreed to pay him rent thereray be made a party to this suit. On Sep-for. tember 23, 1899, the complainant, Bender, The decree of the court below, entered on filed an amended bill, making James A. Murray and the Grand Opera House Company defendants. In this bill Bender alleged the facts hereinbefore recited, and further alleged that the defendant Murray claimed the chairs, stage scenery, and other fixtures in the opera house, but that the same were annexed to the realty and necessary for the use of the property, and that the same were devoted to such use when the attachments were made on December 3, 1896. The bill recited that McFarland, one of the defend ants, obtained his possession of the prop erty under a written lease executed by the opera house company on November 1, 1898, through and from the defendant James A. Murray, and that the property which Murray then claimed as his individual property was leased and described as the property of the opera house company; that since Bender notified McFarland that he (Ben der) was the owner of such property, McFarland had paid of the rents to the Grand Opera House Company a sum in excess of $6,000, and that Murray, through and from

the 4th day of September, 1901, adjudged that the complainant, John O. Bender, was the rightful owner and entitled to have and possess certain premises described in the bill of complaint as the property of the Grand Opera House Company, together with the tenements, hereditaments, and appurtenances thereunto belonging or in any wise appertaining thereto, including the stage fixtures and appliances attached to the stage, the drop curtain attached thereto, and the chairs attached and fastened to the floor by screws and nails, but not includ ing the scenery in the said house, nor the pianos therein, nor the loose and unattached chairs. It was also adjudged that the complainant was entitled to the rents, issues, and profits of the said property from and after the 11th day of March, 1899, the day that Bender was entitled to the sheriff's deed, to the 1st day of February, 1900, when the receiver took possession of the property, and that the defendant James A. Murray account for and pay over to the complainant the rents, issues, and profits of the said

premises, with legal interest thereon from the time the same were withheld, and that said account be referred to the master in chancery, who should take evidence thereon and state said account, and report to the court said evidence and his conclusions thereon. In pursuance of this reference the master in chancery took evidence upon the question of rents, issues, and profits due from the defendant. James A. Murray to the complainant, John O. Bender, and thereupon found that the defendant James A. Murray had received, from the 11th day of March, 1899, to the 1st day of February, 1900, $480 for each month of said period of ten months and eighteen days, to wit, the sum of $5,120, and that the complainant, John O. Bender, was entitled to receive from the defendant James A. Murray, under the decree, the said sum of $5,120, and interest, as particularly specified in the findings, from the time therein mentioned to the day of judgment therein. The report of the master and his findings were returned and filed and entered in the office of the clerk of the court on the 9th day of December, 1901, and, no exceptions having been filed thereto by either party within one month thereafter, the report stood confirmed on the next rule day, as provided in equity rule No. 83. Upon this confirmed report of the master, the court entered a further decree on the 20th day of March, 1902, adjudging that the complainant, John O. Bender, have and recover of the defendant James A. Murray the sum of $6,191.80, being the amount found due by the said master in chancery, together with legal interest at the rate of 8 per cent per annum upon the several amounts and for the several dates set forth in said report, as ascertained and computed to the date of the entry of the decree.

From these two decrees the defendant James A. Murray has appealed to this court, assigning as error: First, the action of the court in adjudging that the complainant, J. O. Bender, was the rightful owner and entitled to the possession of the premises described in the complaint as the property of the Grand Opera House Company, including the stage fixtures and appliances at tached to the stage, the drop curtain, and the chairs mentioned in the decree, and in not determining that they belonged to the defendant; second, the action of the court in determining and adjudging that the complainant was entitled to the rents, issues, and profits of the property described therein, from and after the 11th day of March, 1899, and until the time when the receiver received the rents, issues, and prof its, to wit, the 1st day of February, 1900.

Argued before Gilbert, Ross, and Morrow, Circuit Judges.

Messrs. J. C. Campbell, W. H. Metson, and L. S. B. Sawyer, for appellant: The opera-house furniture, scenery, and appliances were personal property.

The confirmation of Murray's title to the building necessarily also confirmed in him title to the contents, so far as those contents were fixtures and part of the building.

When the furniture was severed from the realty by the owner, if it ever was a portion of the realty, it became personal property, just as so much of the building as was pulled down and converted into lumber and loose bricks also became personalty.

Harris v. Scovel, 85 Mich. 32, 48 N. W. 173; Tyson v. Post, 108 N. Y. 217, 2 Am. St. Rep. 409, 15 N. E. 316; Padgett v. Cleveland, 33 S. C. 339, 11 S. E. 1069; Docking v. Frazell, 34 Kan. 29, 7 Pac. 618; Lewis v. Rosler, 16 W. Va. 333.

If the article is attached for temporary use, with the intention of removing it, a mortgagee cannot interfere with its removal by the mortgagor.

McRea v. Central Nat. Bank, 66 N. Y. 489; Kelly v. Austin, 46 Ill. 156, 92 Am. Dec. 243; Robertson v. Corsett, 39 Mich. 777; Metropolitan Concert Co. v. Sperry, 9 N. Y. S. R. 342; New York L. Ins. Co. v. Allison, 46 C. C. A. 229, 107 Fed. 179.

Messrs. John J. McHatton, T. H. Breeze, and John W. Cotter also for appellant.

Messrs. Crittenden Thornton, L. O. Evans, and John F. Forbis, for appellee: The property awarded to Bender was not personal property, but fixtures, and passed to Bender under his redemption.

Murray made fixtures of the property, and without any evident purpose, so far as can be ascertained from the record, that it should have any other character. He was a stranger to the title, for the title was in the opera house company, and he did not claim it. In such cases the law is well settled that the doctrine of fixtures applies with strictness.

New York L. Ins. Co. v. Allison, 46 C. C. A. 13 Am. & Eng. Enc. Law, 2d ed. p. 619; 229, 107 Fed. 179; Oliver v. Lansing, 59 Neb. 219, 80 N. W. 829; Hill v. Farmers' & M. Nat. Bank, 97 U. S. 450, 24 L. ed. 1051; Phoenix Iron-Works Co. v. New York Security & T. Co. 28 C. C. A. 76, 54 U. S. App. 408, 83 Fed. 757; Pierce v. George, 108 Mass. 78, 11 Am. Rep. 310; Hopewell Mills v. Taunton Sav. Bank, 150 Mass. 519, 6 L. R. A. 249, 15 Am. St. Rep. 235, 23 N. E. 327; Southbridge Sav. Bank v. Mason, 147 Mass. 500, 1 L. R. A. 350, 18 N. E. 406; McFadden v. Allen, 134 N. Y. 489, 19 L.

R. A. 446, 32 N. E. 21; Steger v. Arctic Re- | floor by means of screws and nails. The frigerating Co. 89 Tenn. 453, 11 L. R. A. 580, 14 S. W. 1087; Wood v. Whelen, 93 Ill. 170; Arnold v. Crowder, 81 Ill. 56, 25 Am. Rep. 260; Atchison, T. & S. F. R. Co. v. Morgan, 42 Kan. 23, 4 L. R. A. 284, 16 Am. St. Rep. 471, 21 Pac. 809; Hill v. Mundy, 89 Ky. 36, 4 L. R. A. 674, 11 S. W. 956.

Murray is responsible for the rents collected by him from March 11, 1899, to February 1, 1900.

Morrow, Circuit Judge, delivered the opinion of the court:

It is again contended on this appeal that the court below was in error in holding that Bender was entitled to redeem from the execution sale to King, and from the redemption made by O'Rourke. This part of the decree of the circuit court was before this court in King v. Bender, 54 C. C. A. 317, 116 Fed. 813, and the decree was there affirmed. This affirmance has become the law of the case, not only by the final judgment of this court, but by the decision of the Supreme Court of the United States, refusing to grant a writ of certiorari to review that judgment. 187 U. S. 643, 47 L. ed. 346, 23 Sup. Ct. Rep. 843. This question is, therefore, not open to review on this appeal. Whether the property awarded to Bender by the decree of the court below included personal property owned by the appellant, depends upon the question whether the articles in controversy, consisting of stage fixtures, appliances adapted to the stage, drop curtain, and chairs, had, by being annexed or affixed to the property, become accessory to and part and parcel of it. This is mainly a question of fact, depending upon the character of the articles, and the use and purpose for which they were placed in position; and, this fact having been determined by the court below, its finding will receive careful consideration, and will not be disturbed unless it clearly appears that the finding was not justified by the evidence.

The court found, in its opinion, that the building erected upon the land redeemed by Bender was erected, constructed, and used as an opera house from the very beginning, and that it was being used for that purpose at the time of the decree; that it was suitable for and adapted to such purpose, and could not well be used for other purposes without considerable changes and alterations in its interior arrangement and condition as it then stood and was being used; that it contained a stage and stage fixtures and appliances to facilitate the expeditious handling of scenery during theatrical performances; that it contained a large amount of theatrical scenery, a drop curtain, also a number of opera chairs and seats attached to the

court also found that the scenery in controversy was attached to the stage only as needed, and was capable of being moved without injury to the stage and stage fixtures or to itself, and for the most part was lodged and stored in certain storerooms in the basement of the building. This scenery, together with the pianos in the building, and the loose, unattached chairs, were found not to be fixtures, and by the decree were awarded to the appellant, and are therefore not involved in this appeal. The court also found that Murray's claim to title to the articles in controversy was derived from his redemption from the decree entered in the proceedings instituted for the purpose of foreclosing the mechanics' liens upon the property; that this redemption was made for the purpose of protecting a small judgment which had been assigned to him. The court found further that there was a disclaimer of ownership of the chairs on the part of the opera house company, and a declaration by the company that Murray was the owner thereof, and that a resolution of the board of trustees or directors of the coinpany allowed Murray a monthly rental for the chairs. But the court also found that this was all done at a time when Murray, by purchase or otherwise, had obtained control of a majority of the stock of the company; that he elected a majority of the trus tees or directors of the company; that the trustees, acting at the time the resolution was adopted, were all of them in some way identified with Murray's interest, and subject to his control; that none of the minority stockholders of the corporation were present or represented in the transaction, and that their rights did not appear to have been considered or deemed worthy of consideration. The court found further that a lease of this property was executed by and in the name of the opera house company to one McFarland; that this lease was executed by Murray, who was cognizant of the fact that the opera house company was being held out to McFarland as the owner of the property; that Murray stood by and helped to clothe the opera house company with the apparent ownership and title of this property to a stranger to the title. The court also found that the opera house would have been incomplete as an opera house without chairs, and that those chairs, or similar chairs, were absolutely necessary in its use and occupation for theatrical performances, and that said chairs, affixed as they were, were a part of the building itself, and passed to King under his deed to the premises; that the stage and stage fixtures and drop curtain attached thereto were also fixtures. The findings of the court are supported

by the evidence. Upon the examination of Murray with regard to the agreement or understanding under which he was to be repaid for his expenditures, he testified that he was to be repaid from the net proceeds of the business of the building; that the account was carried on in the name of the opera house company; that he controlled the whole thing, and, when there was enough money on hand to pay him, he had it placed to his credit; that with respect to the property in controversy, after it was removed from the opera house building he had it hauled back, and at that time there was no agreement or understanding between himself and the opera house company, or its officers, with reference to the future use of the property, but that afterwards he did have such an understanding; that, being the principal owner of the stock of the opera house company, he had the property put back to benefit himself, and to get back the money he had expended in the construction of the building; that without that or some other furniture the house would have been valueless; it could not have been run as a playhouse without furniture; that when he replaced the furniture in the opera house, he had no agreement with the managers of the opera house company until the first meeting of the new board in January, 1897, when he had a tacit understanding that he was to be paid after he got his money back; that prior to that time it was all under his own control, and there was nobody to consult; he managed the opera house, and owned the house and furniture.

Maguire, who was familiar with the transaction, testified that the agreement with Murray was that he should furnish the money and fix up the house again, and repay himself from the receipts; and, when that money was paid, the furniture was to be paid for at so much a month. But it appears from the evidence that it was not until June 28, 1899, that the board of trustees of the opera house company adopted a resolution declaring Murray the owner of the furniture, scenery, etc., and allowing him a rental therefor.

manent nature. New York L. Ins. Co. v. Allison, 46 C. C. A. 229, 107 Fed. 179, 182. In Ewell, Fixtures, p. 57, the law is stated as follows: "It has been often held that a building or other annexation placed upon the land of another without his previous consent, and without any contract with him, express or implied, that it may remain the property of the builder as a personal chattel, becomes a part of the realty, and may not be removed by the party erecting it, or his vendee, as against the owner of the soil; and the doctrine holds as well with respect to joint owners as to strangers. One joint tenant or tenant in common cannot erect buildings or make improvements on the common property without the consent of the rest, and then claim to hold till reimbursed a proportion of the money expended."

This principle is clearly applicable by analogy to a case where the owner of a majority of the shares of stock of a corporation, for his own benefit and advantage as a stockholder, annexes personal chattels to real property owned by such corporation. The absence of a previous agreement in such a case, that the property was to remain the personal chattel of the party making the annexation, is evidence of a legal intention that the property was to be regarded as a fixture, which must prevail over the secret intention that the property was to remain separate and removable.

The resolution of the trustees of the opera house company on June 28, 1899, declaring that the property belonged to Murray, and allowing him a rental therefor, cannot be considered as evidence of any great value in favor of Murray. That evidence shows that the trustees of the corporation were acting in the interest of Murray, who held a majority of the stock. The resolution was therefore nothing more, practically, than a declaration by his representatives in interest. Moreover, the adoption of the resolution was more than a year after title to the property had become vested in Bender, and more than two months after the commencement of this suit. It is therefore open to the suspicion that it was passed by the trustees for the purpose of supporung Murray's claim to title.

From this testimony it appears that Murray detached the furniture from the opera house as personal property, and afterwards, The court below found that Murray had becoming the owner of the majority of the received the rents, issues, and profits of the stock of the corporation owning the realty, property from March 11, 1899, to February he replaced the furniture in the opera house 1, 1900, with full knowledge and notice of for his own benefit, and completed the build- Bender's rights in the premises, and by the ing for the purpose for which it was to be decree Murray was required to make restitudevoted, but without any agreement with the tion thereof and pay the same, with legal incorporation itself at that time that the fur- terest. There is no question but that Murniture was to remain as personal property. ray received the rent of the premises from There can be no doubt that, upon general McFarland, the trustee, during the time principles of law, such an annexation of per- mentioned, and, upon the evidence estabsonal property is to be treated as of a per- 'lishing this fact, the decree of September 4,

1901, was entered, and the matter referred to the master to state an account. Upon this reference evidence was offered for the purpose of showing that the rent so received by Murray was paid over to the opera house company. But, objection being made to the evidence, it was excluded by the master, and exception taken; but the exception was not brought to the attention of the court below, as provided by the rules of the court, and the final decree of March 20, 1902, was en

tered, following the decree of September 4, 1901, and adjudging Murray liable therefor. We are of opinion that, having determined that Bender's title to the property is valid, it follows, upon the record before the court, that he is entitled to the rents, issues, and profits derived therefrom, as determined by the decree of the court below.

The decree of the Circuit Court is therefore affirmed.

NEBRASKA SUPREME COURT.

George W. BROTT, Plff. in Err.,

บ.

STATE of Nebraska.

(........Neb.........)

The conduct and behavior of blood

hounds after being set upon the trail of a fugitive criminal may not be given in evidence by the state for the purpose of proving that the scent of the accused and the scent of the person who perpetrated the crime which is being investigated are identical.

(December 2, 1903.)

ERROR to the District Court for Nemaha

County to review a judgment convicting defendant of burglary. Reversed.

The facts are stated in the opinion. Messrs. H. A. Lambert and J. S. McCarty, for plaintiff in error:

In all criminal prosecutions the accused shall have the right to meet the witness against him face to face.

Neb. Const. art. 1, § 11.

The bloodhound of mythology has more sagacity than all the detectives of the world done into one. The bloodhound of commerce is only a dog with a keen scent, entirely incapable of performing miracles or conduct ing an inquiry with even ordinary intelligence.

The bloodhound as a witness cannot be sworn. His testimony, therefore, is not to be

received in court.

Law Notes, June, 1903; 57 Alb. L. J. 131; 34 Canadian L. J. p. 286.

Proof of the burglary of other houses than that for which defendant was tried

was not admissible.

Knights v. State, 58 Neb. 225, 76 Am. St. Rep. 78, 78 N. W. 508; Underhill, Crim. Ev. p. 110, § 89; State v. Johnson, 38 La. Ann.

Headnote by SULLIVAN, Ch. J.

NOTE. For other cases in this series as to

evidence of trailing of criminal by bloodhound, see Pedigo v. Com. 42 L. R. A. 432, and note,

and State v. Moore, 55 L. R. A. 96.

|686; People v. Thacker, 108 Mich. 652, 66 N. W. 563; State v. Jeffries, 117 N. C. 727, 23 S. E. 163.

Messrs. F. N. Prout, Attorney General, and Norris Brown, for defendant in error: Trailing by bloodhounds is a circumstance competent to be proved in criminal prosecutions.

Pedigo v. Com. 103 Ky. 41, 42 L. R. A. 432, 82 Am. St. Rep. 566, 44 S. W. 143; State v. Hall, 3 Ohio N. P. 125; Hodge v. State, 98 Ala. 10, 39 Am. St. Rep. 17, 13 So. 385; Simpson v. State, 111 Ala. 6, 20 So. 572.

Sullivan, Ch. J., delivered the opinion of the court:

and convicted. The court received as eviGeo. W. Brott was charged with burglary, after being taken to the place where the dence of guilt the fact that bloodhounds, crime was committed, appeared to trail the burglar to defendant's house. The competency of this evidence is the only question necessary to consider in disposing of the case. The conduct of the dogs was, perhaps, rightly received, in connection with an admission made by Brott, as evidence tending to prove that he committed the crime

charged in the information; but it was also which the state brought to the attention of received as proof of independent crimes the jury, and to which the admission did not relate. The only evidence of these independent crimes was the inference afforded by the conduct of the dogs. If such evidence is in

competent, the conviction cannot stand. The argument of the attorney general is that the bloodhound has an exceptionally fine perception of scent; that, in following a trail and discriminating between smells, he seldom or never errs; and that knowledge of his extraordinary aptitude is so nearly universal that courts will act upon it without proof. The bloodhound has, of course, a great reputation for sagacity, and there is a prevalent belief that in the pursuit and

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