ON THE LAND

New Zealand Times, Volume LI, Issue 11960, 15 October 1924, Page 4

ON THE LAND

FARMER AND MORTGAGES WER.Ei MILKING MACHINES ANT) PLANT INCLUDED ? VENDOR STJEP FOR DAMAGES. The question of •whether a milking machine is a chattel or . a fixture came before the Appeal Court yesterday for decision. The caso was one in which Jacob Johnston, farmer, of Masterton, proceeded against the International Harvester Co. /or allegedly wrongfully removing from a farm, of which lie "was in possession, a milking machine valued at «£2OO. As general damages for such breaking, entering, and trespass, a further sum of .£BOO was claimed. There was on the Bench the Chief Justice, (Sir Robert Stout, Mr Justice Sim, Mr Justice Adams, and Mr Justice MacGregor. The plaintiff was represented by Mr von Haast and Mr Robinson (Masterton), and for tho defendant company there appeared Mr C. P. Skerrett, K.C., and Mr J. Wright (Christchurch). The actual hearing of the case took place in Masterton, and it was then removed in to the Court of Appeal for legal argument. MANY MORTGAGES. In outlining the case, Mr Robinson explained that in June, 1921, Harold Thompson became owner of a farm, on which the plaintiff, Jacob Johnston, held a second mortgage for ,£1550. and a third mortgage for ,£I2OO. , Later Thompson installed an eight-cow milking plaint on the farm, altering the buildings for the purpose. The machine was supplied by the' International Harvesting Co. Prior to February 6th, 1924, Thompson made default in paying the interests under mortgages, and the plaintiff took over the first mortgage and entered into possession of the farm. The plaintiff's solicitors wrote to Thompson warning him not to remove or permit anyone to remove fixtures from the property. This, it was stated, particularly applied to milking machines and plant attached thereto. It was further alleged that on February 18th, 1924, at an early hour in the morning, the company, by its servants and agents, without any notice to or conference with the plaintiff, wrongfully, forcibly broke and entered and trespassed upon his lands and buildings, and took away the plaintiff's jnilking machine and plant, and ’had since retained it. VENDORS AND "FULL EQUITY/' Cohnsel for the defendant company claimed that it 1 was a well-estabUshea custom in the sale and purchase of milkingl machines, that the vendors retained full equity in the machines until they were fully paid for, and that if any default were made in payment, they oould enter upon the property and remove the machine.

Mr Robinson denied the existence of any such custom, and contended that in any case, if some such local custom did exist, it could not possibly override a positive law, which was to the effect that fixtures on a property subject a morfc. gage could not bo removed. Decision was reserved.