#### Stocker and others, Respondents, vs. Dubuque Fire & Marine Insurance Company, Appellant.

*December 5, 1916*

January *16, 1917.*

*Fire insurance: Standard policy: Personal property: Incumbrance by “chattel mortgage:” Trust deed construed.*

A so-called trust deed, given to secure a loan, which described and conveyed certain land, “together with all the privileges and appurtenances . . . , including therein any and all buildings, improvements, machinery, tools, implements, and fixtures, whether *615attached or unattached to the said real estate, . . . and all machinery and fixtures hereinafter installed, and also any and all tools and implements used by [the grantor] in or about the premises,” is *held to*haye covered fixtures only which were a part of the realty, and not to have been an incumbrance of personal property “by a chattel mortgage” within the meaning of sec. 1941 — 46, Stats.

Appeal from a judgment of tbe municipal court of Outa-gamie county: AlbeRt M. SpeNCER, Judge.

*Affirmed.*

Action to recover on two fire insurance policies. Tbe defendant denied liability.

After tbe evidence was all in tbe defendant moved for a directed verdict. Tbe following verdict was returned:

“(1) Were tbe policies in suit issued to tbe plaintiff by the defendant company and tbe premiums paid thereon? *A.*(by the court). Yes.

“(2) Was tbe plaintiff *Jacob J. StocJcer*tbe owner of the property described in tbe policies of insurance at tbe time of the fire? *A.*(by the court). Yes.

“(3) Did tbe fire originate from causes other than those excepted in tbe policies ?

“(b) Did tbe plaintiff notify tbe fire marshal of said fire pursuant to section 149 6i — section 5, on April 22, 1915 ?

“(c) Did tbe plaintiff furnish tbe defendant within sixty days after tbe fire with proofs of loss under the policies of insurance on or about June 3, 1915? *A.*(by the court). To each of tbe foregoing questions: Yes.

“(4) Was tbe real-estate mortgage of $7,500 executed by *J. J. StocJcer*and wife to *Frank J. Beau*on February 3, 1915, and recorded on February 5, 1915, duly canceled and satisfied by satisfaction executed February 20, 1915, and recorded March 10, 1915? *A.*(by tbe court). Yes.

“(5) Did the plaintiff *J. J. StocJcer*and wife on tbe 20th day of February, 1915, execute and deliver tbe trust deed in evidence to tbe plaintiff *John J.*Beau, covering all the buildings, improvements, machinery, tools, implements, and fixtures, either attached or unattached to tbe real estate, insured by tbe defendant herein? *A.*(by tbe court). Yes.

“(6) Was the trust deed set forth in question No. 5 in *616force and effect at tbe time of tbe fire? *A.*(by the court). Yes.

“(7) Did the defendant give tbe mortgagees, *John L. Beau*and *Frank J. Beau,,*or either of them, notice of tbe cancellation of tbe policies ? *A.*(by tbe court by consent of parties). No.

“(8) What was tbe total amount of insurance, valid or invalid? *A.*(by tbe court by consent of parties):

“(a) On main building. $7,800

“(b) On contents of main building. 5,500

“(c) On stock. 1,100

“(d) On barn. 400

“(e) On icehouse. 200

“(9) How much insurance was written by tbe defendant on items set forth in question No. 8 ? *A.*(by tbe court by consent of parties):

“(a) On main building. $1,800

“(b) On contents of main building. 2,200

“(c) On stock. 400

“(d) On barn. 400

“(e) On icehouse. 200

“(10) What was tbe cash value on April 18, 1915, of each item referred to in question No. 8 excepting main building? *A.*(by tbe court by consent of parties):

“(a) Contents of main building exceeded . $5,500 00

“(b) Barn . 400 00

“(c) Icehouse. 200 00

“(d) Stock . 721 75

“(11) What was the amount of loss and damage of items set forth in question No. 8 excepting main building ? *A.*(by tbe court by consent of parties):

“(a) Loss on contents of main building exceeded . $5,500

“(b) Loss on barn. 75

“(c) Loss on icehouse. 75

“(d) On stock . 600

“(12) Was tbe plaintiff’s one and one-half story concrete and frame, vulcanized roof building and additions adjoining and communicating therewith, occupied as a condensed milk, dairy, and product factory, situated in tbe northwest quar*617ter of tbe northeast quarter, section 28, township 21, range 15 east; town of Dale, Outagamie county, Wisconsin, wholly destroyed by fire on the night of the 18th or morning of the 19th of April, 1915 ? *A.*Yes.

“(13) What was the value of the main building at the time of the fire? *A.*$10,000.

“(14) What was the amount of loss and damage to the main building caused by the fire ? *A.*$10,000.

“(15) Did the plaintiff, on the 10th day of March, 1915, notify the defendant of the execution, delivery, and recording of the trust deed ? *A.*Yes.

“(15-|*) Did the plaintiff *Jacob J. Stocker*instruct John M. Balliet, the agent of the defendant company, on March 10, 1915, to attach to the policies in suit a loss payable clause, payable to *John L. Beau,*trustee? *A.*Yes.

“(16) Did the plaintiffs notify the defendant, on the 10th day of March, 1915, of the executing and recording of the second mortgage to *Frank J.*Beauf *A.*Yes.

“(17) Were the defendant’s two policies of insurance canceled by mutual consent of *Jacob J. Stocker*and the defendant’s agent, John M. Balliet, before the fire? *A.*No.”

The court ordered judgment for plaintiff on the verdict. Judgment was entered accordingly, from which this appeal was taken.

Eor the appellant there was a brief by *Ryan, Gary & Frank,*attorneys, and *Gill & Barry,*of counsel, and oral argument by *A. R. Barry.*

*Francis S. Bradford,*for the respondents.

EjeRWIN, J.

Counsel for appellant in their brief say that the five errors assigned involve the construction of secs. 1941 — 46 and 1941 — 62, Stats. The only material question involved upon this appeal and arising under these sections is whether the so-called trust deed placed upon the property was an incumbrance of personal property included in the policy by chattel mortgage within the meaning of sec. 1941 — 46.

*618If there was no incumbrance of personal property covered by the policy, then the question of waiver discussed under sec. 1941- — 62 need not be considered, because it has no bearing on the case. It appears from the record in the instant case that no personal property was included in the trust deed unless certain fixtures described in connection with the description of the land can be said to be personal property.

It seems plain that there was no intention to include anything but real estate in the trust deed, because the policy did cover certain articles of personal property which were not in the trust deed, viz. stock of milk and dairy products on hand or in process of manufacture, carts, chemicals, etc.

The trust deed was given to secure a loan of $15,000 and obviously was intended to cover, and did cover, only real estate. In addition to description of the land by metes and bounds the deed contained the following:

> “Together with all the privileges and appurtenances to the same belonging or in any wise thereunto appertaining, including therein any and all buildings, improvements, pia-chinery, tools, implements, and fixtures, whether attached or unattached to the said real estate, and to include any and all additional buildings erected or connected with the said plant or buildings, and all machinery and fixtures hereinafter installed, and also any and all tools and implements used by the said *Jacob J. Stocker*in or about the premises.

> “To have and to hold the above described premises, property, and appurtenances unto the said party of the second part and his successors in trust, for the purpose and upon the conditions and subject to the provisions hereinafter set forth.”

The portion of the description above quoted and following description of the lands covered, and was intended to cover, fixtures only, which were part of the real estate conveyed. We are convinced that the instrument in question was a trust deed of real estate, not a chattel mortgage. We find no error in the record.

*By the Oourl.*— The judgment is affirmed.