Stocker v. Dubuque Fire & Marine Insurance

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.