(dissenting). — In my opinion the judgment of the District Court ought to be affirmed. The record in the Wood, Baker & Co. case, to which neither the defendant or Druse, his vendor, was a party, was as to them, res inter alios acta, and, therefore, inadmissible as evidence to affect them with constructive notice or for any other purpose. This seems to me to be a plain proposition. Besides, the suit was not commenced until after the plaintiffs’ rights accrued and his work was finished.
Nor can I concur in the main point ruled in the foregoing opinion.
Bear in mind that after the chattel mortgage to the plaintiffs was made, the machinery was firmly annexed to the real estate — how firmly, see statement preceding the opinion. It is also material to remember that it was thus annexed to the realty by the plaintiffs’ consent and with their assistance. By this annexation it became part of the real estate. The plaintiffs having consented to this annexation, the machinery thus annexed became also, as to them, part of the realty. Being part of the land, it would, of course, pass to a purchaser of the land.
Suppose after such annexation, Craig, the defendant, *166■had purchased the mill property, can it be maintained as law, that he would be bound, in examining the title, to examine the record of chattel mortgages ? I think not. Has he less rights by virtue of his purchase of Druse, without notice, than if he had bought the property of Burris? Druse’s purchase of the land at sheriff’s sale, when consummated by the sheriff’s deed, invested him with the title to the. real estate and to every part of it, including this machinery.
The proposition upon which I stand, and which, with deference to the opinion of my brothers, I maintain to be the law of the case, is, that by the aifixion, with the plaintiff’s consent and co-operation, of the chattels to the realty, they became by this act de faeio by operation of law, part and parcel of the land, and necessarily lost their chattel character, so that they could not be replevied as chattels, but would pass to a purchaser of the land of which they visibly constituted a paid.
The plaintiffs having consented to the conversion of this chattel property into real property, their right to claim the property as chattels under their mortgage, ceased at the precise moment of time when by their consent it ceased to be chattels and became realty. The plaintiffs might afterward enforce a mechanic’s lien, but could not replevy the property by virtue of their mortgage. Winslow v. Ins. Co., 4 Metc. 306; Richardson v. Copeland, 6 Gray, 536; Cross v. Marston, 17 Term. 533, 511; Bringholff v. Munzenmaier, 20 Iowa, 513.
. Again, the Code of 1851, in force when Druse, the mechanic, commenced and finished his work, gave him a lien in express terms upon the land, buildings and 'machinery against “ all persons except incumbrances by judgment rendered, and by instrument recorded before the commencement of the work.” (§§ 981, 982), meaning, as I hold, not chattel mortgages, but those so recorded as *167to be liens on the land and buildings, and machinery on which the lien is given.
■ The mechanic, as I hold, is, under this statute, not bound by constructive notice of chattel mortgages, nor by any instrument not so recorded as to be a lien upon land!
I am in favor of affirmance, but as my brothers think otherwise, the judgment below is reversed and the causé remanded for a new trial. :