On appeal from the Supreme Court.
For the plaintiff-respondent, John A. Bennett.
For the defendant-appellant, Herr, Leiss & Herr, William V. Azzolli and David Weinick.
The opinion of the court was delivered by
CASE, J. Plaintiff sued in replevin to recover possession of certain portions of an oil burner equipment which, in its entirety, had been sold to the owner of the premises upon a filed conditional sale contract. The trial judge, sitting without a jury upon an agreed state of facts, found for the plaintiff. The Supreme Court affirmed. Defendant appeals. The
suit involves identical facts and points of law with regard to the properties known respectively as 155-157 Montclair avenue and 159-161 Montclair avenue, in the city of Newark. The discussion may be applied to either property.
La Ferra, as owner, was building a four-family house with a single heating plant. On August 25th, 1930, he entered into a written contract with Smyth Sales Corporation whereby the latter undertook to install an oil burner, tank and the additional equipment incident thereto, including a pump, the same to be and remain the personal property of the seller, notwithstanding the manner in which the property might be attached to the premises, until the entire purchase price should have been paid. The contract was filed in the register's office of the county of Essex and entered in the conditional sales book on August 28th, 1930. Actual installation was made on September 30th, 1930. The tank was buried three feet under ground. It was connected with the pump and the burner by piping (a part of the equipment) which passed through the foundation wall of the house, was otherwise attached and also, for approximately twenty feet, was so encased that its removal would require the breaking of the concrete cellar floor. Plaintiff's suit is directed against the burner, the tank and the pump. If any of such articles are removed, no heat can be generated unless other appliances are installed in their stead.
On September 9th, 1930, La Ferra executed a mortgage, recorded October 3d, 1930, to defendant Norfolk Building and Loan Association in the amount of $16,000 covering the premises. On April 24th, 1931, one Scrocco obtained a judgment against La Ferra on mechanic's lien and defendant purchased the premises at the execution sale held thereunder. Defendant thus acquired and still holds record title. No reason for reversal is made to depend upon the preservation of the mortgage interest, and we shall assume that the mortgage merged with the title on the acquisition of the equity of redemption.
Defendant's claim that the mechanic's lien attached before the filing of the condition sale contract falls for lack of competent
proof. Its position is therefore that of a purchaser whose acquisition of the realty was subsequent both to the filing of the conditional sale agreement and to the installation of the equipment but who did not assent to a reservation of title in the chattels.
The case turns upon the construction to be given section 7 of the Uniform Conditional Sales act. Pamph. L. 1919, ch. 210; 2 Cum. Supp. Comp. Stat., p. 3130. The section was printed in Domestic Electric Co., Inc., v. Mezzaluna, 109 N.J.L. 574, and elsewhere in the reported cases, and need not be here repeated at length. For present discussion the statutory provisions may be thus restated: An attempted reservation of title to goods so affixed to the realty that they are not severable without material injury to the freehold is void as against any person who has not expressly assented to the reservation; and an attempted reservation of title to goods so affixed to the realty that they are severable without material injury to the freehold is void (a) as against any subsequent purchaser ...