#### R. S. MIDDELTON, Respondent, v. DUNHAM LUMBER COMPANY, a Corporation, Appellant.

(205 N. W. 621.)

Chattel mortgage — hold, that evidence supports findings of trial court that there was no agreement between seller and purchaser of building-material that structure to be built therefrom should remain personalty and become subject to chattel mortgage later to be executed.

Held, for reasons stated in tlie opinion, that the evidence supports the findings of the trial court to the effect that there was no agreement between the seller and the purchaser of building materials that the structure to be built therefrom should remain personalty and become subject to the lien of a chattel mortgage later to be executed.

Opinion filed October 22, 1925.

Rehearing denied November 2, 1925.

Fixtures, 26 C. J. § 41 p. 679 n. 46.

*316Appeal from tbe District Court of Hettinger County, *Berry,*J.

Affirmed.

*8. P. Bigler*and *Znger & Tillobson,*for appellant.

“And while there is a conflict in the authorities as to the right of the prior mortgagee of realty to claim property subsequently annexed thereto, as against the person who sold such annexed property to the owner of the realty under an agreement that such property should be deemed personalty, we believe that, where as in this state, a mortgage is a mere security not giving any right to the possession of the. premises (Comp. Laws, 1913, §§ 6725, 6726), the weight of authority and the better reason supports the equitable rule that the seller of the personal property so annexed to realty may generally enforce his claim upon such annexed property in accordance with the agreement under which it was sold, as against the prior mortgagee of the realty.” Thompson Yards v. Bundy (N. D.) 196 N. W. 312.

*Oblo Thress,*for respondent.

On trial de novo, supreme court acts independently of trial court’s findings though said findings, as oral testimony, will be given some weight. Merchants Nat. Bank v. Collard, 157 N. W. 488, 33 N. D. 556.

On appeal in equity the court will not disregard the opinions of the trial court on conflicting evidence of witnesses examined in open court. (Neb.) 169 N. W. 259.

If the findings of the trial court are not against the preponderance of the evidence such findings should be sustained and the judgment affirmed. Northern Trading Co. v. Drexel Nat. Bank (N. D.) 164 N. W. 151.

In enforcing the lien on improvements, the mechanic’s lien law does not contemplate a course that will destroy the value of the improvements. Atkinson v. Colorado Title & T. Co. 151 Pac. 457.

JoiiNsoN, J.

The plaintiff brings this action to enjoin the defendant from removing certain buildings from a quarter section of land owned by her in Hettinger county. The trial court granted an injunction. The defendant appeals from the judgment.

It appears that some time prior to 1917 the plaintiff sold the land in Hettinger county to one Peter Heupel under a contract for a deed. *317Tbe contract is not in evidence, but it contained a stipulation tbat all improvements made on tbe land by tbe vendee should remain tbereon in tbe possession of tbe véndor in tbe event tbe contract of sale be cancelled. Defaults were apparently made under tbe contract, and in December, 1922, the land was turned back to tbe vendor by a deed of quit claim.

Sometime during the summer of 1917, probably in July, tbe vendee Peter Heupel, purchased a quantity of lumber from tbe defendant at Hebron, this state. With this lumber be built what became tbe middle section of a barn on tbe land purchased from tbe plaintiff. There was a lean-to on each side, neither of which was constructed from lumber or materials purchased from tbe defendant. The lean-tos were joined to tbe middle section, and, according to tbe testimony, tbe whole structure became “a barn with two sides, all built in one.” It was built upon a foundation of mortar and stone, a trench of 2 or 3 inches having been dug before tbe stone foundation was placed. Tbe mortar referred to seems to be gumbo, a natural product available either on or in tbe vicinity of tbe land. Tbe foundation is described by witnesses for tbe plaintiff as a “permanent foundation.” It is in evidence tbat removal of the middle section would result in damaging tbe foundation and tbat tbe effect of such removal would almost necessarily be to destroy or seriously damage tbe lean-to on each side.

On January 20, 1921, Peter Heupel executed a chattel mortgage to tbe defendant to secure tbe balance of tbe purchase price of tbe lumber. This mortgage, in addition to tbe crop to be raised on tbe premises tbe ensuing season, covered tbe barn and tbe lean-tos. Tbe lien of the mortgage was later foreclosed by tbe defendant, and tbe barn and tbe lean-tos sold by tbe sheriff. At tbe foreclosure sale, tbe defendant became tbe purchaser of tbe entire structure for tbe sum of $250.

Tbe defendant claims, and its testimony tends to show, tbat at the time tbe lumber was sold to Peter Heupel, it was agreed between tbe defendant and tbe purchaser tbat tbe building should not be put on a solid foundation, tbat it should remain personalty, and tbat tbe purchaser would later execute a chattel mortgage tbereon. It is on this theory tbat tbe defendant later procured a chattel mortgage, foreclosed tbe same, became a purchaser at tbe sale and attempted to remove tbe building.

*318Peter Ileupel died subsequent to the execution of the quitclaim deed and before the action was tried. A son, John, testified in bebalf of the plaintiff, tbat be was present when bis father purchased the lumber from the defendant; that he went with his father “to look after the buying of the lumber;” that he heard all the conversation; that he heard the deal made between the defendant’s agent at Hebron and his father; that he heard every word that was said; that nothing was said about a chattel mortgage or that the building should be put on such a foundation that it might be moved. He testified further that in order to remove the middle section, you would have to move the lean-tos or tear them down.

The trial court found that the plaintiff was the owner of the land on which the building was situated; that the vendee, under the land contract, purchased lumber and materials from the defendant from which the middle section of the barn was constructed; that there was no agreement between the defendant and Peter Heupel at the time of the purchase that the building to be constructed should remain personal property. The court found that the structure built from the material purchased from the defendant cannot be removed without material injury to the premises. The defendant contends that the evi- ' deuce does not support these findings.

Under the contract between the plaintiff and her vendee, Peter Heu-pel, all improvements on the premises were to become her property in the event the contract was later cancelled. It cannot be disputed therefore that the lean-tos not constructed from .lumber purchased from the defendant were improvements, and became the property of Mrs. Mid-delton when the contract was cancelled. The evidence, we think, overwhelmingly supports the conclusion that the middle section of the barn could not be removed without serious injury or damage to the lean-tos, which appear to have been more or less permanently affixed thereto. The entire structure rested upon a foundation described by some of the witnesses as permanent, and by others as a stone and mortar foundation of the type commonly used for barns in this state.

We do not believe that it is necessary to summarize the testimony further. The decision turns upon the very important and, we think, controlling question of whether there was an agreement that the barn remain personalty. We are satisfied that the findings of the trial court *319on this point have sufficient support in the testimony. The witness, John Heupel, unequivocally asserts that he heard all the conversation when his father purchased the lumber and that nothing whatever was said as to a chattel mortgage, or that the building be put on skids or on a temporary foundation. In view of this testimony and the circumstantial evidence in the record, we think the finding of the trial court must be sustained that no such agreement was made.

In view of the conclusion, we have reached upon this point, it is not necessary to consider at length the question of whether removal of the structure will constitute injury to the realty. It is enough to say that we think the evidence supports the judgment of the trial court on this point.

The judgment of the trial court is affirmed.

CheistiaNsoN, Ch. J., and Burke, Birdzell, and Nuessle, JJ., concur.