There was involved in the trial of this case, by reason of the allegations in the plaintiff's petition, a finding of fact of what property was actually attached to the brick store building in Winfield, Tex., owned by appellee, and used by him in a general mercantile business.
The court, after hearing the evidence, made, in effect, the following findings of fact: (1) That the settee chairs, tables, stove, and window shades were "furniture"; (2) that the cash carriers, counters, and the electric light drop wire cords and sockets were "fixtures not attached to the building," meaning that they were not actual fixtures of, but merely personal chattels at the time in the building; (3) that the shelving, electric ceiling fans, and the signboard were "fixtures permanently attached to the building and a part thereof." There is no conflict in the evidence concerning these facts. As concluded by the court, the legal effect attaching to these facts was, viz.: (1) That the appellant under the bankruptcy proceedings and sale became and was the owner, with the right of removal from the store building, of the "furniture" as well as the merely personal chattels enumerated above; (2) that the appellant was not the owner and did not acquire any interest or title nor right of removal from the "business brick building" belonging to the appellee, under the bankruptcy proceedings and sale of the *Page 939 "fixtures permanently attached to the building and a part thereof." The appellant challenges the court's conclusion denying to him the right to have, and in holding him subject to damages for the removal of the shelving, electric ceiling fans, and the signboard, classed by the court as "fixtures" within the meaning of the law. The shelving, electric ceiling fans, and the signboard were, according to the undisputed evidence, attached to the store building in a manner merely to hold them fast and useable, and were not irremovable without causing a permanent or material physical injury to the house as it was built. The court's finding of fact that these articles were "fixtures" was upon the evidence that the appellee, as owner of the store building, intended at the time of their erection or construction to make them permanently a fixed accessory to the store building and a part of it.
It is, as often held, in every case a question of intention to make certain articles for use or convenience affixed or annexed to the house a permanent part or fixtures, within the meaning of the law, of the house, so as to become part of it. Therefore in this case there is not involved, and cannot be, any question as to whether or not an owner of a store building can by intention on his part make articles of the kind here a permanent part of the store building, so as to become a part of it, legally speaking. The contention of the appellant is to be considered only from the standpoint of whether or not he acquired an interest or title to and right of removal of the character of "fixtures" in evidence, as a purchaser under the bankruptcy proceedings. There is no doubt that the store building was exempt property under the laws of Texas; the appellee being a married man and the store building being used at the time of the bankruptcy as a place to carry on his business as the head of a family. And, further, there is no doubt that the "fixtures" in hand would be, generally speaking, legally considered a part of the store building, so as to become a part of it and consequently exempt along with the "store building." But in the precise facts of the case the appellee seems to have by operation of law vested the trustee in bankruptcy with the title to such "fixtures," and to have expressly not reserved them. It is affirmatively shown that at the time the appellee, being insolvent, filed a voluntary petition in bankruptcy, he specifically and without qualification scheduled and valued as "assets" subject to sale for the benefit of his creditors the following: "store fixtures." The only "store fixtures" that he had in his possession and owned were located in the brick store building in which he was then doing business. At the same time with his petition the appellee also filed a claim for exemption allowable to him under the laws of Texas. He specifically claimed, besides certain other things not material to state, as exempt to him the following: "West brick building, on lots 8 and 9 in block 8, now used as a mercantile house." This claim for exemptions was never changed or amended. The bankruptcy court set aside to appellee as exempt property the following: "Business brick building, west lots 8 and 9 in block 8, Winfield, Texas, $5,500." The trustee made sale and executed a conveyance to the purchasers of the following, besides other things not material to state: "Furniture and fixtures situated in the one-story brick building belonging to A. Chapman, bankrupt, in Winfield, Titus county, Texas." It certainly does no violence to these voluntary acts of appellee, as evidenced by his schedule and claim, to treat them as meaning that the "store fixtures" were to be "assets" of his general estate, and agreeing that they could be disposed of for the benefit of his creditors, and that his homestead exemption was to be to the extent of the "west brick building" without, and not inclusive of, "the store fixtures" therein.
The very language used by the appellee in these written instruments, of which he had full knowledge, admits of no other meaning than that he did not claim nor intend to claim as exempt "the west brick building" together with "the store fixtures." His voluntary act of separately scheduling the "store fixtures" as "assets" of the general estate, and his distinct act of claiming as exempt the "building" in which the "store fixtures" were at the time located, are sufficiently contradictory of any intention and purpose on appellee's part to claim and hold as exempt such "store fixtures." That the appellee could legally waive the claim of exemption and make conveyance of the "fixtures," separate and distinct from the "store building," is settled by repeated rulings of the courts. Fixtures can be treated by the parties as in the nature of personalty, and severed from the building. 19 Cyc. p. 1070; 11 R.C.L. p. 1066; 2 Page on Contracts, p. 991; 2 Devlin on Real Estate, § 1227. And, further, the law of "fixtures," yields to special provisions of contract between parties. Wright v. Macdonnell, 88 Tex. 140, 30 S.W. 907. The same principle is involved in the cases respecting severance and sale of growing trees. Carter v. Clark Boice Lbr. Co. (Tex.Civ.App.)149 S.W. 278; Houston Oil Co. of Texas v. Boykin, 109 Tex. 276,206 S.W. 815. Therefore the appellee's claim of homestead exemption of a store "building" should not, in this case, necessarily, as a matter of law, be construed and held to mean to include the "store fixtures" therein. In other words, it should not be held in the facts of this case that the appellee's "claim for exemption," as filed by him in the bankruptcy proceedings, of a store "building" *Page 940 necessarily extended to and included as a matter of law the "store fixtures" therein.
The schedule of assets of the general estate, and the claim for exemptions are legal proceedings expressly required to be made under the Bankrupt Act (U.S.Comp.St. §§ 9585-9656). And the bankruptcy proceedings, voluntary as they were here, operated as a matter of law to vest in the trustee the title of the bankrupt, and necessarily imply the power to the trustee to sell and give a title thereto to the purchasers, of all the "assets" of the bankrupt's general estate. Consequently the purchasers in this case legally acquired the right and title to the "store fixtures" under the purchase and conveyance of the trustee, and they could remove them from the building, and were not legally subject to damages for so doing.
The court allowed a recovery for $75 as of conversion of the property on which a rent lien existed. The conclusion reached was a correct one, if the pleadings would authorize such recovery. The pleadings, though, as they appear in this record on appeal, only predicate recovery of rent for one month on an implied contract to pay same. It is undisputed that the appellant occupied the store building for six days, and for those six days he would owe a reasonable sum of money to appellee, the other parties not agreeing, it appears, to pay same. He was required to pay, as a reasonable sum at the rate of $75 per month, which would be $15 for the six days, and that sum should here be allowed the appellee as rent.
The evidence is not clear as to who broke the transom glass. If the appellant himself did not break the glass, yet the circumstances tend to show that some one of his workers did do so, and the court's finding of fact is warranted. These workers were not shown to be independent contractors, but inferably were employees for whose act the appellant was legally responsible.
The judgment is therefore modified so as to only allow a recovery to appellee of $25 for the transom glass and $15 for rent, aggregating $40; and as so modified the judgment will be affirmed. The costs of appeal will be taxed against the appellee.
Modified and affirmed.