III. Parties between Whom the Question of Fixtures arises.-The relation existing between the parties making claims to chattels annexed to the freehold enters so largely into the question of any particular article being a removable fixture, that the largest part of the law of fixtures is an investigation of the effect of these separate relations of claimants upon the general law. While in the early history of the law it was generally treated as arising between three different classes of persons, now the subject has been so extended that it becomes necessary to discuss the law as it arises among a much larger number of classes of claimants. 1. Assignees of a Bankrupt and Other Persons.—It is the general rule in such cases, that fixtures pass with the real estate and not to the assignees of a bankrupt under the provision of the bankruptcy acts relating to goods and chattels.1 30 Vt. 443; Bartlett v. Wood, 32 Vt. 372, But according to the later cases, the importance of this rule seems to have lost its force. “The circumstance that the machinery may or may not be removed without great injury to the building or to itself is not now deemed to be controlling." Hunt, C., in Voorhees v. McGinnis, 48 N. Y. 278. See also Morrison v. Berry, 42 Mich. 389; Quimby v. Manhattan, etc., Co, 24 N. J. E. 260; De Graffenried v. Scruggs, 4 Humph. (Tenn.) 451; I Wash. Real Prop. (5th Ed.) 24. Many cases hold that the intention of the party making the annexation is the chief element to be considered in determining what are fixtures. Hill v. Sewald, 53 Pa. St. 271; Seeger v. Pettit, 77 Pa. St. 437; McDavid v. Wood, 5 Heisk. (Tenn.) 95; Perkins v. Swank, 42 Miss. 349; Allen v. Mooney, 130 Mass. 155; Ottumwa, etc.. Co. v. Hawley, 44 Iowa, 57; Jones 7. Ramsey, 3 Ill. Ap. 303; Hutchins v. Masterson, 46 Tex. 551; Huebschmann v. McHenry.29 Wis. 655-661; Taylor v. Collins, 51 Wis. 123-129; Hill v. Wentworth, 28 Vt. 428; 4 Cent. Law Jour. 22; Ewell Fixtures, 21, 22. Compare Treadway v. Sharon, 7 Neb. 37. It has been held that where permanent annexation to the freehold is intended, an article lawfully annexed becomes a fixture and part of the realty, whether its removal would injure the freehold or not. Morrison v. Berry, 42 Mich. 389. And the matter of intention is a question for the jury. Seeger v. Pettit, 77 Pa. St. 437. Campbell, C. J.. says: "It has been held in this court that there is no universal test whereby the character of what is claimed to be a fixture can be determined in the abstract. Neither the mode of annexation nor the manner of use is in all cases conclusive. It must usually depend on the express or implied understanding of the parties concerned." Wheeler 2. Bedell, 40 Mich. 693; court cited Coleman v. Stearns Mfg. Co., 38 Mich. 30; Jones v. Detroit Chair Co., 38 Mich. 92; Robertson v. Corsett, 39 Mich. 777. Another class of cases hold that the true test of a fixture is the adaptation of the article to the uses and purposes to which the realty is applied, and no regard is had to the character of the annexation. Voorhis v. Freeman, 2 W. & S. (Pa.) 119; Pyle v. Pennock, 2 W. & S. (Pa.) 390; Farrar v. Stackpole, 6 Me. 154. Park, J., in commenting on this rule, says: This rule is too extensive in its application, for it includes all the machinery in mechanical and manufacturing establishments, when the connection to the freehold is made for the purpose of keeping them in position for the successful working of them, but with no design on the part of the owner to constitute them a part of the realty." Capen . Peckham, 35 Conn. 88. Whether a particular article is a fixture or not is a mixed question of law and fact. Tillman v. Delacy, So Ala. 103; Allen v. Mooney, 130 Mass. 155; Leonard v. Sticknev, 131 Mass. 541; Campbell v. O'Neill, 64 Pa. St. 290; Saint 2. Pilley, 10 Excheq. (L. R.) 137; Grand Lodge Masons v. Knox, 27 Mo. 315. 1. Horn 7. Baker, 9 East, 215; Clark v. Crownshaw, 3 B. & Ad. 804; Coombs 7. Beaumont, 5 B. & Ad. 72; Ryall v. Stevens, 1 Atk. 165; Storer v. Hunter, 3 B. & C. 368; Bigler v. Newburgh Bank, etc., 26 Hun (N. Y.), 520; Gibbons' Law of Fixtures, 56. Where by the terms of a lease the lessor was to take the trade fixtures erected by the tenant during his term, at a valuation to be determined three months before the expiration of the 2. Debtor and Creditor.-Inasmuch as the right of a creditor to treat chattels annexed to freehold as personal property depends upon the right of the debtor to do so, it follows that whatever fixtures the debtor is at liberty to remove may be seized and severed by an execution creditor.1 And the purchaser at the sale term, on the re-entry by the landlord, caused by the forfeiture of the lease, it was held that these trade fixtures went to the landlord and not to the assignees of bankruptcy, the bankruptcy taking place on the day following the execution of the writ of possession. Storer v. Hunter, 3 B. & C. 368. on If a tenant stipulate with his landlord that the fixtures set up by him during his term shall not be removed his becoming bankrupt, the landlord will have a title to the fixtures rather than the assignee of the bankrupt. Coombs v. Beaumont, 5 B. & Ad. 72. In this case a steam engine erected for the purpose of working a colliery to be used by the lessee during his term, but to be held as the property of the landlord, subject to such use, did not pass to the assignee of the bankrupt. Park, J., says: "The steamengine, if affixed to the freehold, clearly does not pass to the assignees, because it does not come within the description of 'goods and chattels' in 6 G. IV. c. 17, s. 72. This was determined in the case of Horn Baker, and since that case, as far as my experience goes, I never knew that any distinction was made between such fixtures as would be removable between landlord and tenant. Trading fixtures not expressly conveyed by the terms of a mortgage will pass to the assignees. Trappes v. Hunter, 2 C. & M. 152; Ex parte Barclay, 5 De G. M. & G. 403; Waterfall v. Penistone, 6 E. & B. 876. Machinery consisting of looms in a worsted mill, though only attached to the floor for the purpose of steadying them, pass to the mortgagee as fixtures, and not to the assignees of the bankrupt. Holland v. Hodgson, 7 C. P. (L. R.) 328. Filing a petition in liquidation works a forfeiture of the lease, but does not prevent the assignee from taking trade fixtures. Ex parte Gould, 13 Q. B. D. (L R.) 454. Even in case of trade fixtures, if the bankrupt has previously parted with his title to the house or building, either by conveyance absolute or by mortgage, he has prima facie, at least, parted with his fixtures. Ex parte Barclay, 5 De G. M. & G. 403; Colegrave v. Dias Santos, 2 B. & C. 76; Cullwick v. Swindell, 3 Eq. Cas. (L. R.) 248; Ex parte Cotton, 2 M. D. & D. 725. This is true even if the trade fixtures were erected after giving the mortgage. Walmsley v. Milne, 7 C. B. (N. S.) 115; Ex parte Belcher, 4 Dea. & Chit. 703; Ex parte Reynall, 2 M. D. & De G. 443. Compare Waterfall v. Penistone, 6 E. & B. 876890; Hellawell v. Eastwood, 6 Ex. 295. The distinction between landlord's and tenant's fixtures does not apply when the question arises between a mortgagee and the assignee of a bankrupt. Hinchman v. Walton, 4 M. & W. 409; Coombs v. Beaumont, 5 B. & Ad. 72; Walmsley v. Milne, 7 C. B. (N. S.) 115; Longbottom v. Berry, 5 Q. B. (L. R.) 123; Sheffield, etc., Co. v. Harrison, 15 Q. B. D. 258. An equitable mortgagee has the same right in contesting the claims of an assignee of a bankrupt as a legal mortgagee. Williams v. Evans, 23 Beav. 239; Ex parte Price, 2 M. D. & De G. 518; Ex parte Barclay, 5 De G. M. & G. 403. The assignees of a bankrupt trader may remove trade fixtures if it be done before the landlord takes possession of the premises or before they have disclaimed. Saint v. Pilley. 10 Excheq. (L. R.) 137; In re Moser, 13Q. B. D. (L. R.) 738; Ex parte Glegg, 19 Chan. Div. (L. R.) 7. As to assignees for benefit of creditors, see Morris' Appeal, 88 Pa. St. 368. 1. Poole's Case, 1 Salk. 368; Minshall v. Lloyd, 2 M. & W. 450; Walton v. Wray, 54 Iowa, 531; State v. Bonham, 18 Ind. 231; Cresson v. Stout, 17 Johns. (N. Y.) 116; Farrar v. Chauffetete, 5 Den. (N. Y.) 527; Kirwan Latour, 1 H. & J. (Md.) 289; Gale v. Ward, 14 Mass. 351; O'Donnell z. Hitchcock, 118 Mass. 401; Heffner v. Lewis, 73 Pa. St. 302; Lemar v. Miles, 4 Watts (Pa.), 330; Lamphere v. Lowe, 3 Neb. 131; Tobias v. Francis, 3 Vt. 435; Chit. Gen. Prac. 94: Tidd's Prac. (9th Ed.) 1002; Pillow v. Love, 5 Hay. (Tenn.) 109. Stevens, J., says: "Upon the most inature and deliberate examination which we have been able to give the subject. and upon a full consideration of all the leading cases to be found in the books materially relative to the subject, we are of opinion that the same rule should be applied between debtor and creditor that is applied between landlord and tenant. We think that rule more likely to give has a right to enter upon the premises and remove them.1 But fixtures erected by the owner of the freehold are not subject to an execution against him.2 satisfaction, and answer the ends of justice generally, than either of the others." Taffe v. Warnick, 3 Blackf. (Ind.) III. However, it has been held that the rule as to fixtures between the owner and purchaser at a sheriff's sale is the same as between vendor and purchaser. Farrar 7. Chauffetete, 5 Den. (N. Y.) 527; Kirwan . Latour, 1 H. & J. (Md.) 289; Powell v. Monson, 3 Mason, 459-467; Goddard v. Chase, 7 Mass. 432; Price v. Brayton, 19 Iowa, 309; Stillman v. Flennikin, 58 Iowa, 450. A steam engine erected by a tenant for the purpose of trade is a fixture until detached by the tenant, and if sold by the sheriff it must be sold as a part of the realty. Ruffin, J., in giving the opinion of the court, says: "There can be no doubt, however, that as between the tenant and his creditors an engine of this sort, actually fixed to and in the soil, and which cannot be removed without tearing down the mason work and house which covers it, is until severance a part of the realty. . . If the creditor could not reach it as realty, the court would go as far in his favor in holding it to be of that species, which would render it liable to sale. But until it is parted from the soil such fixture loses its distinctive character of personalty. For this reason the sale by the constable is absolutely void, for he can in no case sell land. For the same reason the seizure by the sheriff is ineffectual to the end of vesting the property in him as a personal chattel. He must sell the property in the State, and as the kind it is at the time of the sale. The single act of levying an execution does not change the nature of the property. And although the tenant might have a right to sever the fixture from the freehold, until that right be exercised by him or the officer the thing is merged in the soil." Pemberton v. King, 2 Dev. L. (N. Car.) 376. Compare State v. Bonham, 18 Ind. 231. Manure made upon a farm by a tenant, in the absence of a special contract or custom, belongs to the land, and cannot be sold separately on an execution against him. Sawyer 2. Twiss, 6 Fost. (N. H.) 345; Middlebrooke v. Corwin, 15 Wend. (N. Y.) 169; Wetherbe v. Ellison, 19 Vt. 379; Daniels v. Pond, 21 Pick. (Mass.) 367; Lassell v. Reed, 6 Me. 222. Compare Staples 7. Emery, 7 Me. 201. Boards in a corn-barn used for a per manent floor, and stone posts deposited upon the farm for the purpose and with the intention of building necessary fences cannot be sold on execution by an officer. Hackell v. Amsden, 57 Vt. 432. If fixtures are erected by the debtor after the sale of the land under an execution and before the sheriff's deed passes to the purchaser, they will pass with the land. Hayes v. N. Y. Min. Co., 2 Colo. 273. A steam-engine and boiler bought by the owner of a mill, and hauled upon the ground with the intention of placing them in the mill, become a part of the realty, and are not subject to a levy of an execution as personal property. Patton v. Moore, 16 W. Va. 428; s. c.. 37 Amer. Rep. 789. Compare Miller v. Wilson, 33 N. W. Rep. 128. Fixtures are subject to a mechanic's lien. Spruhen v. Stout, 52 Wis. 517; Appeal of Dickey, Atl. Rep. (Pa. 1887) 577; Ward v. Kilpatrick, 85 N. Y. 413; s. c.. 37 Amer. Rep. 472; Baum v. Covert, 62 Miss. 113. A fixture erected by a tenant for trade purposes may be levied on and sold or removed by the tenant himself, although there be an agreement between him and his landlord that in a certain event the fixture was to be the property of the landlord, provided that at the time of the levy or the removal the event had not taken place. Lemar v. Miles, 4 Watts (Pa.), 330. A dancing hall erected by the owner of land upon cedar posts to be used in connection with his saloon is realty, and not subject to attachment as personal property. Lipsky v. Borgmann, 52 Wis. 256. 1. Lamphere v. Lowe, 3 Neb. 131; Doty v. Gorham, 5 Pick, (Mass) 487; Lemar v. Miles, 4 Watts (Pa.), 330. 2. Winn v. Ingilby, 5 B. & Ald. 625; Green Phillips, 26 Gratt. (Va.) 752; I Chitt. Gen. Prac. 94; Tidd's Prac. (9th Ed.) 1002; 2 Stark. Ev. (5th Am. Ed.) 909. A ciapboard machine and shingle machine in a sawmill were held to pass on a sale of the real estate on an execution, although the owner had mortgaged them as personal property, and the mortgage was recorded in the town-clerk's office. Trull . Fuller, 28 Me. 545. Engines and machinery for a flouringmill, erected by lessees under an agreement with the landlord that they should have the right to remove them at the end 3. Heir and Executor.-The general rule as to fixtures, when the question arises between an heir and executor, is that nothing, after having been annexed to the freehold, can be severed and removed by the executor unless some good and sufficient reason shall appear why that which has been made a part of the inheritance should be converted into personalty, contrary to the design of the freeholder, as it would appear from the annexation.1 of their term, were held to pass as fixtures to the purchaser of their interest in the real estate under the lease. McNally v. Connolly, 70 Cal. 3. Nursery trees planted by the owner of land pass to the heir, and are not subject to an execution until severed. Osborn v. Rabe, 67 Ill. 108; Bank of Lansingburg v. Crary, 1 Barb. (N. Y.) 542. A smutter loaned to the owner of a grist-mill and annexed to the mill in the usual manner of attaching such machinery, the owners of the mill to pay a certain rental yearly for the use thereof, passes to the purchaser of the real estate at a judicial sale, without notice of such an arrangement between the parties. Stillman v. Flenniken, 58 Iowa, 450. Trade fixtures, consisting of a stationary mill with engines, boiler, and machinery, erected by two persons upon the land of one of them, cannot be held as realty in favor of an execution purchaser of the land for the debt of the freeholder. Young v. Baxter, 55 Ind. 188. 1. Elwes v. Mawe, 3 East, 38; Lee v. Risdon, 7 Taunt, 188; Fisher v. Dixon, 12 Clark & Fin. 312; Winn v. Ingilby, 5 B. & Ald. 625; Kinsell v. Billings, 35 Iowa, 154; Buckley v. Buckley, 11 Barb. (N.Y.) 43; Voorhees v. McGinnis, 48 N. Y. 278; Wadleigh v. Janvrin, 41 N. H. 503; House v. House, 10 Paige (N. Y.), 158; Doak v. Wiswell, 38 Me. 569; McDavid v. Wood, 5 Heisk. (Tenn.)95; 2 Redfield on Wills, 145. Machinery, although generally regarded as personal property, yet when erected by the owner of land for the better enjoyment of the freehold, passes at his death to his heir, and does not belong to the executor as assets. Lord Cottenham, in a case which was decided as if it had arisen between heir and executor, says: "Then the case being simply this, the absolute owner of the land having erected upon and affixed to the freehold, and used for the purpose of the beneficial enjoyment of the real property, certain machinery, the question is, Is there any authority for saying that under these circumstances the personal representative has a right to step in and lay bare the land and take away all the machinery necessary for the enjoyment of the land? Although machinery is generally in its nature personal property, yet with regard to machinery or a manufactory erected upon the freehold for the enjoyment of the freehold nobody can suppose that can be the rule of law." Fisher v. Dixon, 12 Clark & Fin. 312. See also Walmsley v. Milne, 7 C. B. (N. S.) 115; House v. House, 10 Paige (N. Y.), 158. And if the corpus of such machinery goes to the heir, all that belongs to that machinery, although more or less capable of being detached and of being used in the detached state, goes with it. Fisher v. Dixon, 12 Clark & Fin. 312; Haley v. Hamersley, 3 De G. F. & J. 589. So it has been held that although the fixtures were erected for trade and manufacture, they would nevertheless go to the heir with the estate. "I apprehend, therefore, that the case comes clearly within that of machinery affixed to the land for the purpose of better.and more beneficially using and enjoying the land of which he is the owner; and although the means of such use and enjoyment be manufacture and trade, still I am of opinion that all such articles in question as are affixed to the freehold, whether by screws, solder, or any other permanent means, or by being let into the soil, partake of the nature of the soil, and would have descended to the heir along with and as part of the soil itself." ViceChancellor Wood in Mathew v. Fraser, 2 Kay & J. 536. However, in McDavid v. Wood it was held an interest which the deceased had in a saw-mill went to the executor as assets, and not to the heir as realty, on the ground that it was a trade fixture. McDavid v. Wood, 5 Heisk. (Tenn.) 95. Compare Pea v. Pea, 35 Ind. 387. And in another case it was said that " as between heir and executor, modern notions are far more liberalized and accommodated to the ordinary purposes of those who carry on business than formerly." Pillow 2. Love, 5 Hayw. (Tenn.) 10. It has been held that set-pots, ovens, and ranges fixed up by the owner of a house would go to the heir, and could not therefore be seized on an execution 4. Landlord and Tenant.-When the question of removal of fixtures arises between, landlord and tenant the law is now well established, both in England and America, that a tenant may sever and remove all fixtures of a chattel nature erected by him upon the leased premises for the purpose of ornament, domestic convenience, or to carry on a trade.1 The removal must be made without against the owner. Wynn v. Ingilby, 5 B. & Ald. 625. See also Colegrave v. Dias Santos, 2 B. & C. 76; The King v. Inhabitants, etc., 4 B. & C. 686. Also, salt pans, wainscot, furnaces, and pictures fixed to the wainscot go to the heir. Lawton v. Salmon, 1 H. Black. 258, note. Also nursery trees. Meyers v. Schemp, 67 Ill. 469. And manure. Fay v. Muzzey, 13 Gray (Mass.), 53; Sawyer v. Twiss, 6 Foster (N. H.), 345. 1. 2 Taylor's Land. & Ten. (8th Ed.) 149; Lawton v. Lawton, 3 Atk. 13; Penton v. Robart, 2 East, 88; Pugh v. Arton, 8 Eq. (L. R.) 626; Hayes v. N. Y. Mining Co., 2 Colo. 273; Youngblood v. Harris, 68 Ga. 630; Thomas v. Crout, 5 Bush (Ken.), 37; Conrad v. Saginaw Min. Co., 54 Mich. 249; Davis v. Buffum, 51 Me. 160; Winslow v. Merchants' Insurance Co., 4 Met. (Mass.) 306-310; Deane v. Hutchinson, 40 N. J. E. 83; O. R. & N. Co. v. Mosier, 14 Oreg. 519; Railroad Co. v. Deal, 90 N. Car. III; Keogh v. Daniell, 12 Wis. 181; Gaffield v. Hapgood, 17 Pick. (Mass.) 192. Where a custom is shown of leasing lots in a city, placing buildings thereon for dwelling purposes, and removing them before the expiration of the term, held, that although the lease was silent as to the removal of such improvements, it was presumed to be made with reference to the custom. Keogh v. Daniell, 12 Wis. 163. See also Van Ness v. Pacard, 2 Pet. (U. S.) 137; Weathersby v. Sleeper, 42 Miss. 732. A conveyance of leased premises by a landlord does not interfere with the tenant's right to remove his fixtures. Lamphere v. Lowe, 3 Neb. 131-136; 1 Wash. Real Prop. 27. Nor will a lien created by the lease on fixtures to be erected by the tenant to secure the rent be valid against the owner of a chattel mortgage upon such fixtures, having no knowledge of the terms of the lease. Lamphere v. Lowe, 3 Neb. 131. An agreement by a tenant to deliver up in good order all future erections or additions to or upon the premises cannot be extended so as to apply to trade fixtures. Holbrook v. Chamberlin, 116 Mass. 155: Cubbins v. Ayres, 4 Lea (Tenn.), 329; Bishop v. Elliott, 11 Ex cheq. 113; Naylor v. Collinger, 1 Taunton, 19. Compare Elliott v. Bishop, 10 Excheq. 495. But it has been held that a boiler under such a clause passes to the landlord. Agnew v. Whitney, 10 Phil. (Pa.) 77. See also Gett v. McManus, 47 Cal. 56; Thresher v. East London, etc., Co., 2 B. & C. 608. A building erected by a tenant at will without any contract with the land owner, on a brick foundation, over a cellar, is not removable by the tenant. Madigan v. McCarthy, 108 Mass. 376. It was also held in this case that the mere assent of the owner of the land to treat the building as personal property would avail nothing until after severance. When a tenant erects buildings in accordance with the terms of his lease, he will not be allowed to remove them at the expiration of his term. Deane v. Hutchinson, 40 N. J. E. 83. The rigor of the common law has been gradually relaxed in favor of tenants, and the first exceptions from the strict rule, that whatever had once become annexed to the freehold partook of its na ture as real property, was in the matter of of trade fixtures. Elwes v. Mawe, 3 East, 38; Poole's Case, Salk. 368; Lawton v. Salmon, 1 H. Blacks. 259, note. In this case Lord Mansfield says: "All the old cases, some of which are in the year-books and Brooks' Abridgment, agree that whatever is connected with the freehold, as wainscot, furnaces, pictures fixed to the wainscot, even though put up by the tenant, belong to the heir. But there has been a relaxation of the strict rule in that species of cases for the benefit of trade between landlord and tenant, that many things may now be taken away which formerly could not, such as erections for carrying on any trade, marble chimneypieces, and the like, when put up by the tenant." The exception having once been made in favor of trade fixtures, it was soon extended so as to apply to ornamental and domestic fixtures. Ex parte Quincey, I Atk. 477; Lawton v. Lawton, 3 Atk. 13; Elwes v. Mawe, 3 East, 38. And in England, by statute, this exception has been extended to agriculture. 14 & 15 |