Appeal from the District Court of the Seventh Judicial District of the State of Nevada, Esmeralda County; Theron Stevens, Judge.
S. Wyman Smith, for Appellant.
James K. Reddington, for Respondent.
By the Court, Norcross, C. J.:
This is an appeal from an order made after final judgment denying a motion to set aside and vacate a sheriff's sale upon execution, issued against the above-named appellant. The respondent herein recovered judgment in the lower court against appellant for the sum of $1,098. Thereupon execution was issued, and on the 7th day of July, 1909, under and by virtue of such execution, the sheriff of Esmeralda County sold as personal property of the defendant, appellant herein, one thirty-horsepower electric hoist; one frame building inclosing said hoist; one gallows frame, including crosshead and sheave wheel; one ore car; one engine-house; one blacksmith shop; three transformers, and one transformer house. The foregoing property was sold in one lot for the lump sum of one hundred and twenty-five dollars.
The motion to set aside and vacate the sheriff's sale under execution was based upon the ground that all of said property, or at least the greater portion thereof, constituted fixtures, and hence could not be sold as personalty. The question involved here is whether or not the buildings, hoist, motor, and transformer, or any of them, constitute fixtures as that term is understood in the law. If they, or any of them, are fixtures, then the sheriff's sale was void, and the order of the trial court should be reversed.
The motion to set aside the sale was supported by the affidavit of the president and general manager of the defendant and appellant corporation. His affidavit sets forth the condition of the property in question at the time of the sale to have been as follows: That the said electric hoist was firmly attached by bolts into a four-foot foundation, consisting of timber and cement and embedded in the ground. That the
said gallows frame, of which the crosshead and sheave wheel form an integral part, was firmly embedded in the ground in six or eight feet of dirt. That the engine-house and blacksmith shop were buildings firmly attached to the ground. That the three transformers were firmly bolted and affixed to the ground, and that the transformer house as affixed to the ground.
The plaintiff, in opposition to the motion, offered a number of affidavits.
From the affidavit of Emory J. Arnold, the purchaser at the execution sale, we quote the following: The electric hoist was in the engine-house, standing upon a piece of framework or cribbing. It was in no way attached or affixed to the said framework or to the building. It was not attached by bolts or otherwise into a four-foot foundation or any foundation consisting of timber or cement or any other material embedded in the ground or otherwise. The gallows frame, with crosshead and sheave wheel, was in place over the shaft, and was not, and is not, firmly embedded in the ground in six or eight feet of dirt. It is not attached or affixed to the ground. The engine-house, which was built around and to cover the electric hoist, is a wooden building on sills, which sills are simply laid on the ground and leveled up with blocks and stones. It is in no way attached or affixed to the ground. The blacksmith shop is also a small wooden structure placed on sills which are laid on the ground without either blocks or stones. It is in no way attached or affixed to the ground. The transformer house is also a small wooden building erected on sills laid on the ground, and leveled up by blocks or stones, and is in no way attached to the ground. The three transformers stood, and now stand, upon the floor of the transformer house, and are not attached or affixed, in any way, to the said house or the ground.
The affidavit of S. G. Errett, in opposition to the motion, was to the following effect: That upon the 3d day of August, 1909, he made a careful examination upon the ground of the buildings and other improvements situated on the Third Chance mining claim, Goldfield Mining District, Nevada. The electric hoist was not then upon the premises. It formerly
stood in the engine-house. It stood upon a base or substructure, consisting of a frame or piece of cribbing seven feet ten inches in length, and seven feet six inches in width. This frame is constructed at the top of 2x8 inch timber, held together in each corner and in the middle of each side, where there is a cross-timber two inches by eight inches in size, by beams slipped over bolts, without nuts, such bolts running from the bottom to the top of such structure and extending about three and one-half inches above the top of the structure. The frame is partially above and partially below the floor of the engine-house, which floor is constructed around it, and was evidently built after the framework. The frame is partially above and partially below the surface of the earth. The bolts are without nuts, which have, at some time, been removed by splitting. The ends of one of the bolts show evidence of having been cut in the splitting of said bolts, and several pieces of split nuts are lying on the floor near the frame. The hoist evidently stood originally on the framework secured by these bolts, and was evidently at some time removed by cutting the nuts and raising the machinery from the bolts.
The gallows frame is about thirty-two feet high; sills thirty-three feet long of 8x8 inch timber; braces of 6x6 inch timber; crosshead and sheave wheel being in place over the shaft. The gallows frame is placed in position on the brow of a hill. The sills rest upon the posts; such posts at the westerly end of the frame being over the slope of the hill and extending from the hill to the ground. The ...