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serious injury to the freehold, and while he is still in possession of the premises as a tenant.2 But the time of removal may be extended by agreement.3 Vict., c. 25, S. 3; 38 & 39 Vict. c. 92, s. continues during his original term and 53; 2 Smith's Leading Cas. 191. See such further period of possession by him also AGRICULTURAL FIXTURES, post. as he holds ihe premises under a right

A carriage-house, registers and slates, still to consider himself tenant." double glass doors, gas- pipes, iron sink, Weeton v. Woodcock, 7 M. & W. 14. See and cupboard were held to be permanent also Loan and Discount Co. v. Drake, 6 accessions to the freehold, and not re- C. B. 796. “ If the tenant remain in movable by an outgoing tenant. Nor possession after his term expires, and could the tenant prove a parol agreement perform all the conditions of the lease, with the landlord that was made at the it amounts to a renewal of the lease from time of executing a written lease of the year to year, and I take it he wi be enpremises, allowing him to remove all titled to remove fixtures during the fixtures erected by him during the term. year.” Woodward, J., in Davis v. Moss, Appeal of Kenny, 12 Atl. Rep. (Pa.) 589. 38 Pa. St. 346. See also Kerr v. Kings

1. Conrad v. Saginaw Min. Co., 5+ bury, 39 Mich. 150; Bircher v. Parker, Mich. 219; Cubbins v. Ayres, 4 Lea 40 Mo. 118. (Tenn.), 329; McDavid v. Wood, 5 Heisk. When the lessee holds over his term (Tenn.) 95; Ambs v. Hill, 10 Mo. Ap. and the landlord secures judgment of 108: Allen *, Kennedy, 40 Ind. 142; 2 restitution, which is not immediately enTaylor's Land. & Ten. $ 550.

forced, the tenant in the mean time has Lord Hardwicke laid down the rule no right to remove a small dwellingthat the principal thing “shall not be house erected by him during his term. destroyed by the accessory.” Lawton z'. Smith v. Park, 31 Minn. 70. Lawton, 3 Atk. 13. When the building is It has been held that when the tenancy but an accessory to the fixtures, both are expires on a day certain, and the tenant removable. Hence, when a building is holds over against the will of the landerected over an engine for its protection, lord, he forfeits his right to remove fixboth can be removed as trade fixtures.

Cromie v. Hoover, 40 Ind. 49; Nor does it matter whether the building is Allen v. Kennedy, 40 Ind. 142. wood or brick. Lawton v. Lawton, 3 A tenant having mortgaged his fixtures Atk. 13; Foley v. Addenbrooke, 13 M. & during an unexpired term cannot, by a

surrender of his lease before the end of the 2. Poole's Case, i Salk. 368; Lyde v. term, prevent the mortgagfyr from enterRussell, i B. & Ad. 394; Minshall v. ing upon the premises and removing Lloyd, 2 M. & W. 450; Elwes v. Mawe, them. Loan and Discount Co. v. Drake, 3 East, 38; Penton v. Robart, 2 East, 88; 6 C. B 796. See also Saint v. Pilley, 10 Youngblood v. Harris, 68 Ga. 630; Gaf- Excheq. (L. R.) 137. Nor will the surfield v. Hapgood, 17 Pick. (Mass.) 192; render of the lease by the tenant affect Watriss v. First Nat. Bank, 124 Mass. previously acquired rights of his sub571; Hayes v. Doane, II N. J. E. 84; tenants. Baker v. Pratt, 15 Ill. 568; McTorrey 2. Burnett, 38 N. J. L. 457; Kensie v. Lexington, 4 Dana (Ken.),130. Loughran v. Ross. 45 N. Y. 792; Van Where the landlord agreed to sell trade Ness v. Pacard, 2 Pet. (U. S.) 137.

fixtures for the benefit of the tenant, but Some conflict has arisen as to what is failed to do so, it was held that the tenmeant by the expression “during the ant was entitled to a reasonable time term.” Ín Penton v. Robart, 2 East, 88, after surrendering the premises to reit was held that the tenant's right to re- move the fixtures. Torrey v. Burnett, move his fixtures continued as long as 38 N. J. L. 457. he was in possession of the premises, If the landlord should sever his tenalthough his term had expired. The case ant's fixtures after the tenant had surrenwas decided upon the principle that as dered the premises, the latter cannot the tenant still retained possession of the claim them personal property. premises the presumption that he had Stokoe v. Upton, 40 Mich. 581. abandoned the fixtures to the landlord 3. Cromie v. Hoover, 40 Ind. 49: Torwas rebutted

rey v. Burnett, 38 N. J. L. 457; Josslyn It was said in one case “that the rule 21. McCabe, 46 Wis. 591; Saint v. Pilley, to be collected from the several cases de 10 Excheq. L. R. 137. cided on this subject seems to be this: The license to remove fixtures after the that the tenant's right to remove fixtures expiration of the lease need not be in

8 C. of L.-4

tures.

W. 173.

as

49

598

5. Mortgagor and Mortgagee.-The general rule as to fixtures between mortgagor and mortgagee is that all annexations to the realty pass by the mortgage to the mortgagee unless by express terms the mortgagor except them from the terms of the conveyance.1 Annexations made after the execution of the mortgage writing. Torrey v. Burnett, 38 N. J. L. 47 Iowa, 439; Keeler v. Keeler, 31 N. J. 457. But a license to leave certain fix. E. 181. tures on the premises after they have Where the mortgagor united with his been surrendered cannot be construed as partner in erecting a small building on a license to re-enter and remove them. blocks, and which was used for the purJosslyn v. McCabe, 46 Wis. 591.

pose of trade, it was held that it would 1. Hitchman v. Walton, 4 M. & W. 409; not pass to the mortgagee under his Longstaff 2. Meagoe, 2 A. & E. 167; mortgage. Kelly 2'. Austin, 46 Ill. 156. Walmsley v. Moore, 7 C. B. (N. S.) 115; Walker, J., in giving the opinion of the Ex parte Belcher, 4 Dea. & Ch. 703; court, says: “Even a mortgagor may Longbottom v. Berry, 5 Q. B. (L. R.) make temporary erections, if they are 123; Merritt v. Judd, 14 Cal. 60; Maples not attached to the freehold, and remove V. Millon, 31 Cono. sos; Pea v. Pea, 35 them before the morigage is foreclosed, Ind. 357; Arnold v. Crowder, 81 Ill. 56; if he does not depreciate the value of the Winslow v. Merchants’ Ins. Co., 4 Met. Security as it existed when the mortgage (Mass.) 306; Union Bank v. Emerson, 15 was given.". Compare State Sav. Bank Mass. 159; Quimby v. Manhattan, etc., v. Kercheval, 65 Mo. 682. Co., 24 N. J. E. 260; Wadleigh v. Platform scales erected by the owner Janvrin, 41 N. H. 503-514; McRea v. of land will pass to the mortgagee on Cent. Nat. Bank, 66 N. Y. 489; Hoskin foreclosure. Arnold v. Crowder, 81 III. v. Woodward, 45 Pa. St. 42.

56. See also Bliss v. Whitney, 9 Allen As between mortgagor and mort- (Mass.), 114. gagee, when we have once established It has been held that when a building is the facts that a thing appertains to the constructed for milling or manufacturing real estate, is necessary for its enjoy- purposes, and is so employed, all the mament, and is permanently attached to the chinery and appliances used in connection freehold, its character as a fixture results with the business, whether attached in any ing to the benefit of the mortgagee is de- way to the realty or not, become a part of termined.” Chancellor Williamson in the realty, and a mortgage simply of the Crane v. Brigham, 11 N. J. E. 29. land carries with it such machinery and

Chief Justice Shaw has very clearly appliances, even without any mention stated the law on this branch of the sub- being made thereof. Farrar 7'. Stackject in these words: “ All buildings erected pole, 6 Me. 154; Winslow v. Merchants' and fixtures placed on mortgaged premi. Îns. Co., 4 Mei. (Mass.) 306-314; Ege v. ses by the mortgagor must be regarded Kilee, 84 Pa. St. 333; Ottumwa Woollen as permanently annexed to the freehold; Mill Co. v. Hawley, 44 Iowa, 57; Rochethey go to enhance the value of the es- reau v. Bobb, 27 La. Ann. 657; Taylor v. tate, and will therefore inure to the bene. Collins, 51 Wis. 123. Compare Despatch fit of the mortgagee so far as they en- Line, etc., v. Bellamy Manig. Co., 12 N. hance the value of the equity of redemp. H. 205. But it seems that the largest tion, and thereby inure to the benefit of number of authorities insist on a physi. the mortgagor." Butler v. Page, 7 Met. cal annexation to the realty to make ma(Mass.) 40. See also Hunt v. Hunt, 14 chinery a part of the freehold. Farmers' Pick. (Mass.) 374; Winslow Mer- Loan and Trust Co. v. Minneapolis E. chants' Ins. Co., Met. (Mass.) 306. & M. Works, 35 Minn. 543; McKim v.

As the mortgagor has the power to re- Mason, 3 Md. Chan. 186; Burnside 7'. deem his estate by the payment of the Twitchel. 43 N. H. 390. Mitchell, J. debt, there is no hardship connected with says: “ While physical annexation is the strict enforcement of the common- not indispensable, ihe adjudicated cases law rule as to annexations to the freehold. are almost universally opposed to the Graeme v. Cullen, 23 Gratt. (Va.) 266-290. idea of mere loose machinery or uten

A mortgage upon a mill containing ar- sils, even where it is the main agent or ticles of machinery that have become principal thing in prosecuting the busifixtures will not be affected by a challel ness to which the really is adapted, being mortgage given upon the machinery as considered a part of the really for any personal property. Smith v. Waggoner, purpose. To make it a fixture it must 50 Wis. 155. See also Adams v. Beadle, not merely be essential to the business of

are subject to the same rules as those made before. 1

Nor does

430; Hunt

Mass. 279.

the structure, but it must be attached to by belting will not as a matter of law it in some way, or at least it must be pass to a mortgagee under the mortgage. mechanically fitted, so as in ordinary un- Carpenter z'. Walker, 140 Mass. 416; derstanding to constitute it a part of the Balliett 21. Humphreys, 78 Ind. 388. structure itself. It must be permanently Electric-light wires fastened to masts attached to or the component part of in the street and connected with the plant some erection, structure, or machine are a part of the machinery, and pass which is attached to the freehold, and under a mortgage upon the lot upon without which the erection, structure, or which the plant is situated.

Fechet v. machine would be imperfect or incom- Drake (Ariz.), 12 Pac. Rep. 694. See also plete.” Wolford v. Baxter, 33 líinn. 12. Regina v. North Staffordshire R. Co., 3 In Alabama it has been held that mere

E. & E. 392. use of machinery in a cotton-mill is not Bridges, rails, and other property, enough, as between mortgagor and mort- which become affixed to and a part of a gagee, to subject it to the lien of the mort- railroad covered by a prior mortgage, gage on the land. Rogers v. Prattville will be held by the lien of such mortgage Mig. Co., I South. Rep. 643.

in favor of bona fide creditors as against A steam engine and boiler used in a any contract between the furnisher of the mill pass as a part of the realty by a property and the railroad company, conmortgage of the estate by the owner. taining stipulations that the title to the Perkins v. Swank, 43 Miss. 349; Sweet- property should not pass until paid for. zer v. Jones, 35 Vt. 317; Harris v. Porter v. Pittsburg Steel Co., 122 U. S. Haynes, 34 Vt. 220; Scheifele v. Schmitz, 267; Dunham v. Railway Co., I Wal. 42 N. J. E. 700.

(U. S.) 254; Fosdick v. Schall, 99 U. S. Looms, cards, spinning frames, etc., 235-251; Dillon v. Barnard, 21 Wal. fastened to the floor in a cotton-mill to

v. Bay State Iron Co., 97 steady them, are not fixtures as between mortgagor and mortgagee. McKim 7'. When a chattel mortgage is given on Mason, 3 Md. Chan. 186. See also Swist machinery, which is afterwards attached v. Thompson, 9 Conn. 63; Murdock v. to the mill in such a way as to be easily Gifford, 18 N. Y. 28; Fullam v. Stearns, removed without injury to the freehold, it 30 Vt. 443; Bartlett v. Wood, 32 Vi. 372. will be valid against a prior real-estate Compare Longbottom v. Berry, 5 Q. B. mortgage. First Nat. Bank v. Elmore, 52 (L. R.) 123; Holland v. Hodgson, 7 C. Iowa, 541; Eaves v. Estes, 10 Kan. 314; P. (L. R.) 328; Ottumwa Woollen Mill Tifft v. Horton, 53 N. Y. 377; Henry v. Co. v. Hawley, 44 Iowa, 57.

Von. Branstein, 12 Daly (N. Y.),480; Miller It has been held that the law makes a V. Wilson, 33 N. W. Rep. 128; Burrill v. distinction between machinery which S. N. Wilcox Lum. Co., 32 N. W. Rep. furnishes the motive-power for a mill 824; Keeler 7. Keeler, 31 N. J. 181. or factory and that which is propelled See also Blancke v. Rogers, 26 N. J. E. by the motive-power, the former being 563. Compare Voorhees V. McGinnis, considered as realty and the latter as 48 N. Y. 278; Pierce v. George, 108 personalty. Case Mfg. Co. v. Garver Mass. 78. (Ohio, 1836), 13 N. E. Rep. 493; Teaff v. A mortgage of a factory eo nomine inHewitt, i Ohio St. 512; Keeler v. Keeler, cludes ex vi termini all machinery and 31 N. J. E. 181; Murdock v. Gifford, 18 N. other articles essential to the factory. DelY. 28; McConnell v. Blood, 123 Mass. 47. aware, etc., R. Co. v. Oxford Iron Co., Compare Taylor 2. Collins, 51 Wis. 123; 36 N. J. E. 452. See also Voorhis '. FreeOurumwa Woollen Mill Co. v. Hawley, man, 2 W. & S. (Pa.) 116; Hoskin v. 44 Iowa, 57.

Woodward. 45 Pa. St. 42; Shelton v. Machinery annexed in a substantial Ficklin, 32 Grattan (Va.). 727. manner to a building is not a fixture un- A mortgagee may consent to a fixture less there is such unity of title to the realty remaining personal property, in which and machinery that a conveyance of the case the right of removal is not lost. realty would of necessity convey the fix- Eaves t'. Estes. 10 Kan. 314; Tibbetts v. tures also. Adams v. Lee, 31 Mich. 410; Moore, 23 Cal. 208; Wight z'. Gray. 73 Robertson 7". Corsett, 39 Mich. 777; Me. 297; Foster 2. Prentiss, 75 Me. 279; Trappes ? Hunter, 2 C. & M. 153; Bartholomew ?'. Hamilton, 105 Mass. Young 7. Baxter. 55 Ind. 188. See also 239: Tifft 7. Horton, 53 N. Y. 377: CulGlobe Marble Mills Co. v. Quinn, 76 lers 2. James, 66 Tex. 491; Harkey v. N. Y 23.

Cane (Tex.), 6 S. W. Rep. 637. Machinery annexed to real estate only 1. 1. Washburn Real Prop. (5th Ed.),

the favor generally extended to trade fixtures apply

when the question arises between mortgagor and mortgagee. The inten25; Jones Mort. sect. 436; Winslow gagee for the purpose of foreclosure v. Merchants' Ins. Co., 4 Met. (Mass.) must be determined by the rule which 306; Lynde v. Rowe, 12 Allen (Mass.), prevails as between mortgagor and mort100; Corliss v. McLagin, 29 Me. 115; gagee, and not that which prevails beWight v. Gray, 73 Me. 297; State Bank tween landlord and tenant. Lynde v. 7. Kerchival, 65 Mo. 682; Coleman . Rowe, 12 Allen (Mass.), 100; Wight v. Stearns Mfg. Co., 38 Mich. 30; Burnside Gray, 73 Me. 297. V. Twitchell, 43 N. H. 390; Blake v. Where machinery was bought by a Respass, 77 N. Car. 193; Bond v. Cope, mortgagor and placed in a building after 71 N. Car. 97; Snedeker v. Warring, 12 the mortgage was given, the vendor of N. Y. 170; Wood v. Whelen, 93 Ill. 153; the machinery cannot claim it under a Sweetzer v. Jones, 35 Vt. 317; Tillman bill of sale with condition that title V. DeLacy, 80 Ala, 103; Roberts v. should revert to the vendor if the note Dauphin Dep. Bank, 19 Pa. St. 71; given to secure the price of the machinery McKim v. Mason. 3 Md. Ch. 786; Ex were not paid, but it passes under the parte Belcher, 4 Dea. & Ch. 703; Culle- mortgage to the mortgagee. Thompson wick v. Swindell, 3 Eq. Cas. (L. R.) v. Vinton, 121 Mass. 139; Frankland 249; Walmsley v. Milne, 7 C. B. (N. S.) Moulton, Wis. 1; Roddy v. Brick, 12 115; Ex parte Cotton, 2 M. D. & D. 725. N. J. E. 128; Tibbetts v. Moore, 23

The ground on which it has been held Cal. 208; Hamilton v. Huntley, 78 Ind. that fixtures erected after the mortgage 521; S. C., 41 Am. Rep. 593; Bass passed with the land is, that as the Foundry v. Gallentine, 99 Ind, 525; Davmortgagee may suffer by the depreciation enport v. Shants, 43 Vt. 546. Compare of the property, arising from fluctuation Tifft v. Horton, 53 N. Y. 377. In this in value, from accident, and from neglect, case it was held that a steam-engine and so he may be benefited by its apprecia. boiler put up in an elevator, upon which tion, whether the same arises from the machinery a chattel mortgage was given proper cultivation and improvement of before the delivery of it, containing a the property, or from any other cause. clause providing that the property should Roberts v. Dauphin Dep. Bank, 19 Pa. remain personal property until paid for.

without reference to the manner in which If a mortgagor lease the mortgaged it was attached to the real estate, did not premises, and the tenant erect fixtures pass under a mortgage upon the real with an understanding with the mort- estate. gagor that they will be removable at the Nor will an agreement between vendor end of the term, they become a part of and vendee of machinery which becomes the realty, and cannot be removed by the fixtures by being attached to the freehold tenant. Frankland v. Moulton, 5 Wis. I; bind a subsequent mortgagee without Lynde v. Rowe, 12 Allen (Mass.), 100. notice of the agreement, Southbridge See also Hunt v. Bay State Iron Co., 97 Savings Bank v. Exeter Machine Works, Mass. 279. Compare Tifft v. Horton, 53 127 Mass. 542; Davenport v. Shants, 43 N. Y. 377; Sanders v. Davis, 15 Q. B. D. Vt. 546. 218.

Buildings erected by a mortgagor after Machinery was placed in a building by foreclosure of the mortgage pass with the the owner of the lot, with the understand-land. Guernsey v. Wilson, 13+ Mass. ing that the owner of the machinery was 482. See also Mutual Life Ins. Co. v. to take a lease of the premises, but before Dowden, 3 Atl. Rep. 351. Compare the lease was executed, the owner of the Henry v. Von Brandenstein, 12 Daly (N. land gave a mortgage upon the lot, to one Y.) 480. who saw the machine on the premises, When the chattel is annexed after givand was ignorant of the agreement be- ing the mortgage, and is of doubtful chartween the owner of it and the owner of acter, there must be stronger evidence the premises. Held, that the machinery of intention to make a permanent accespassed by the mortgage. Southbridge sion to the freehold than if it were anSav. Bank v. Stevens Tool Co., 130 Mass. nexed prior to or at the time of giving 547. See also Hunt v. Bay State Iron Co., the mortgage. Tillman v. De Lacy, so 97 Mass. 279.

Ala. 103; Clore v. Lambert, 78 Ky. 224. If, after the execution of a mortgage on 1. Merritt v. Judd, 14 Cal. 60; Burnreal estate, fixtures are added by a tenant side 1'. Twitchell, 43 N. H. 390; Wight at will of the mortgagor, his right to re- V. Gray, 73 Me. 297; Winslow v. Mermove them, after an entry by the mort chants' Ins. Co., 1 Met. (Mass.) 306;

St. 71.

tion of the mortgagor in making the annexations is to be closely considered in determining whether a fixture erected by him is removable or not. The same rules as to fixtures apply between mortgagor and mortgagee as between heir and executor and be. tween vendor and vendee. 2

306.

Childress v. Wright, 2 Coldw. (Tenn.) It is not the intention to make a thing 350; Mathews v. Fraser, 2 K. & T. 536; annexed to or placed upon the freehold Longbottom z'. Berry, 5. Q.B. (L.R.) 123; personal property that alters its legal Walmsley v. Milne, 7 C. B. (N. S.) 115; character as a fixture, but the intention Cullwick v. Swindell, 3 Eq. Cas. (L. R.) to make a permanent or temporary an. 249; Climie v. Wood, 3 Ex. (L. R.) 257. nexation. Rogers v. Brokaw, 25 N. J. In Climie v. Wood, 3 Ex. (L. R.) 257,

E. 496. Kelly, C. B., says: “There have been Erections made by the owner of real several cases where the courts have de- estate are presumed to be permanent. cided that upon the true construction of Arnold v. Crowder, 81 Ill. 56; Winslow the mortgage deeds, trade fixtures were 2. Merchants’ Ins. Co., 4. Met. (Mass.) removable by the mortgagor, but not one to show that such right exists without a Machinery may remain chattels for all special provision. A mortgage is a

purposes, even though physically atpledge for a debt, and it is not unreason- tached to the freehold by the owner, if able, if a fixture be annexed to land at the the mode of attachment indicates that it time of a mortgage, or if the mortgagor is merely to steady it for its more conin possession afterwards annexes a fix- venient use, and not to make it an adture to it, that the fixtures shall be junct of the building or soil. Carpenter deemed an additional security for the V. Walker, 140 Mass. 416; Hubbell v. debt, whether it be a trade fixture or a East Cambridge Bank, 132 Mass. 447; fixture of any other kind. It has already McGuire v. Park, 140 Mass. 21. been observed that no authority has been The fact that annexations to the freecited to show that trade fixtures may be hold are called chattels in a deed to the removed by the mortgagor, but there are mortgagor does not affect the mortgagee's several to the contrary.

right to them as fixtures. Quimby v. 1. Quimby v. Manhattan, etc., Co., Manhattan, etc., Co., 24 N. J. E. 260. 24 N. J. E. 260; Rogers v. Brokaw, 25 See also Rogers v. Brokaw, 25 N. J. E. N. J. E., 496; Jones v. Ramsey, 3 Ill. 496; Lyle v. Palmer, 42 Mich. 314. Nor Ap. 303; Robertson v. Corsett, 39 Mich. does excepting fixtures from the terms 777; Arnold v. Crowder, 81 Ill. 56. of a mortgage make them personalıy. Judge Dillon, in discussing the law of fix- Davis v. Eastham, 81 Ken. 116. tures, says: “Whoever traces the history An owner of machinery and other of the growth and development of the things in the nature of fixtures, which may law on the subject, will see that the con- be easily severed from the really, may stant tendency of the judicial mind has treat them as chattels, and by the execubeen towards the emphasizing the im- tion of a chattel mortgage upon them portance of intention, actual or presumed, estop himself from asserting as against from the character, relations, and pur. the mortgagee that they are real estate, poses of the property as an element of and the mortgagee may put his mortgage controlling and frequently decisive im. in evidence to show his right to the posportance. 4 Cent. L. Jour. 22. And session of the articles mortgaged, within one case the court says: “ If the inten- out thereby putting the title to real estion was to render the improvement per- tate in issue. Corcoran v. Webster, manent when erected, there can be no 50 Wis. 125; Smith v. Benson, i Hill doubt that it became part of the freehold, (N. Y.), 176. and no subsequent change of intention 2. Arnold v. Crowder, 81 Ill. 56: changed its character to that of personal Burnside v. Twitchell, 43 N. H., 390: property. Dooley v. Crist. 25 Ill. 551. Wadleigh v. Janurin. 41 N. H., 503;

Intent alone will not convert a chaitel Thomas 7'. Davis, 76 Mo. 42; Davidson 7. into a fixture. Walford v. Baxter, 33 Westchester Gaslight Co., 99 N. Y. 558; Minn, 12; Farmers' L. & T. Co. v. Minn. Montague 7'. Dent. 10 Rich. (S. Car.) E. & M. Works, 35 Minn. 543; Theilman 135; Johnson v. Wiseman, 4 Met. (Ky.) v. Carr, 75 III. 385; Arnold v.Crowder, 81 357; Weathersbyv. Sleeper, 42 Miss. Ill. 56; Treadway v. Sharon. 7 Nev. 37. 732.

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