
    Henry Tyson et al., App’lts, v. Henry A. V. Post, Impleaded, etc., Resp’t. George C. Dutcher, as Committee, etc., App’lt, v. Same, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed January 17, 1888.)
    
    1. Fixtures—When owner of land can make them personalty.
    Thfi owner of land can re-impress the character of personalty on chattels
    
      which, by annexation to the land, have become fixtures according to the ordinary rule of law, provided only that they have not been, so incorporated as to lose their identity, and the re-conversion does not interfere with the right of creditors or third persons.
    2. Same—Parol agreement—Rule as to paroi evidence.
    The plaintiffs entered into an agreement to sell certain lands to one O. C, at the time the first payment was made, executed a mortgage on said land to the plaintiffs, and, at the same time, it was alleged plaintiffs agreed with defendant Post that he might take the title to a certain plant and machinery situated on said land for his security (for the money which he had paid to plaintiffs on account of C’s said payment) free of the mortgage and remove them at any time from the mortgaged premises. Held, that the agreement was valid, although made by paroi, and that even if it contradicted the legal import of the mortgage, it being an agreement between different parties, was not within the rule which forbids paroi evidence to contradict a written contract.
    Appeal from judgments of the supreme court, general term, second department, reversing the judgments entered at the Kings county special term, and ordering a new trial.
    In November, 1882, the plaintiffs, owners in common of certain premises in Long Island city, agreed in writing to sell said premises, together with the machinery, engines and boilers, and the apparatus thereon, to ope Hatton, who was the nominee of one Carroll. Carroll, with the knowledge and consent of the plaintiffs, procured Hr. Post to agree to advance the money for the first payment on the security of the old iron which had once constituted or been part of some marine railway, but had ceased to be used in connection with the premises for any purpose; and subsequently Carroll, the plaintiffs’ attorney and Mr. Beaman, representing Mr. Post, met, and the deeds and mortgages were simultaneously delivered, and the sum of $6,200 was paid on account of Mr. Post, who immediately took possession of the property in dispute.
    
      C. Elliott Minor, for app’lt; Prescott Hall Butter, for resp’t.
    
      
      Affirming 37 Hun, 643, mem.
      
    
   Andrews, J.

The question whether the defendant Post acquired title to the plant and machinery of the marine railways embraced in the plaintiff’s mortgage as security for the $6,200 paid by him to the plaintiffs at the request of Carroll, to enable the latter to complete the first payment of the contract with the plaintiffs for the purchase of the land, does not depend upon the character of the property, whether real or personal, when placed upon the mortgaged premises.

There can be little doubt, however, that the machinery, shafting, rollers and other articles became as between vendor and vendee, and mortgagor and mortgagee, fixtures and a part of the realty. McRae v. Central Nat. Bank, 66 N. Y., 489.

Bat by agreement for the purpose of protecting the rights of vendors of personalty or of creditors, chattels may retain their character as chattels, notwithstanding their annexation to the land in such a way as in the- absence of an agreement would constitute them fixtures. Ford v. Cobb, 20 N. Y., 344; Sisson v. Hibbard, 75 N. Y., 542.

So also it would seem to follow that by conversion the owner of land can re-impress the character of personalty on chattels which by annexation to the land have become fixtures according to the ordinary rule of law, provided only that they have not been so incorporated as to lose their identity and the re-conversion does not interfere with the rights of creditors or third persons.

The plant and machinery in question were personal property when placed on the land, and the only issue presented is, did the plaintiff^ agree with Post that he might take the title to the plant and machinery for his security, free of the mortgage and remove them at any time from the mortgaged premises, thereby re-impressing the property with the character of personalty? In determining this question it does not seem to us to be very material to inquire whether the deed from the plaintiffs to Cooney (the nominee of Carroll) and the mortgage back embraced or was intended to embrace the plant and machinery.

Post was not a party to the instruments and is not concluded by them. The rights of Post depend wholly upon his agreement with the plaintiffs, and if they received his money upon the agreement that he should have the plant and machinery, with the right to remove them without restriction as to time, the agreement was valid although by paroi and even if it contradicts the legal import of the mortgage, it being an agreement between different parties, it is not within the rule which forbids paroi evidence to contradict a written instrument.

The only point of disagreement between the parties relates to a restriction alleged to have been placed on the time within which Post should exercise the right of removal. The plaintiffs concede that the right of removal was given to Post, but they allege that it was subject to the limitation that the right should be exercised before any proceedings'were taken to foreclose the mortgage. The defendant, on the other hand, claimed that the right was unrestricted and absolute. The paper executed by the plaintiffs on the closing of the transaction contains the restriction claimed by the plaintiffs. But we think the evidence sustains the contention of the defendant, that the paper was not delivered to or accepted by him and that he had no knowledge of its contents. The question of fact, therefore, depends upon the other evidence bearing upon the actual agreement. It would not be useful to state the evidence in detail. It is-sufficient to say that after a careful examination of the testimony we have reached the conclusion that the claim of the defendant is most consistent with the conceded facts and is supported by a preponderance of evidence.

The order of the general term should therefore be affirmed and judgment absolute directed in accordance with the stipulation.

All concur.  