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6. Executor or Tenant for Life and Remainderman.-As between these two classes of persons, the law of fixtures is not as strict as between heir and executor, nor so liberal as between landlord and tenant. However, it would be safe to lay down the general rule that fixtures erected by a tenant for life, for the purposes of trade, pass at his death to his executor as assets. 1

7. Tenants in Common. The rule governing fixtures erected upon land by tenants in common is the same as that governing cases of vendor and vendee.2

a common

1. Dudley v. Warde, Amb. Ch. Rep. In this case Tenny, J., in giving the opin113. See also Elwes 2. Mawe, 3 East, 38; ion of the court, says: “ Whatever was in Lawton 7. Lawton, 3 Aik. 13; 10 Amer- the Woolen Factory,' situated upon the ican Jurist. 60. In the case of Lawton v. land described and used in the appro. Lawton. 3 Atk. 13, Lord Hardwicke said. priate business thereof, could not have “ This is not a case between an ancestor been considered by the commissioners to and heir, but an intermediate case between be temporary for one party more than for a tenant for life and remainderman. In the other, and therefore cannot fall within the reason of the thing the situation of the principle applicable as between landthe tenant for life comes near to that of lord and tenant. Hence it is a case

tenant, where the goods of where the doctrines which govern bethe public is the material consideration. tween vendor and vendee are to have These reasons of public benefit and con- their most extended influence." In this venience weigh greatly with me, and are case it was held that if one of the tenants a principal ingredient in my present in common rightfully erected buildings opinion.'

upon the common property for his own Inasmuch as the executor of a tenant use, after a co-tenant had filed his petition for life has more favor shown him than for a division, it could not be appraised the executor of the owner of the land, it by the commissioners in partition in esfollows that whatever an executor of the timating the value of the whole property. freeholder could remove would be also Where a boiler, engine, and stack were removable by the executor of the life erected on land of the plaintiff at the tenant. But in some cases the executor joint expense of himself and the defendhas been permitted to remove ornamen- ant, under an agreement to use the same tal fixtures against the will of the heir. as a common source of power, without 2 Smith's Leading Cas. 197; Harvey v. limitation as to time, the interests created Harvey, 2 Strange, 1218. Hangings nailed thereby in the fixtures are in the nature to the wall go to the executor. Squier v. of real estate; and if one of the tenants Mayer, 2 Freem. 249. But pictures and in common exclude the other from the glasses put up instead of wainscot go to use and possession of such fixtures, ejectthe heir, and not to the executor. Cave ment will lie to enforce the agreement. v. Cave, 2 Vern. 508.

Hill v. Hill, 43 Pa. St. 521. Tapestries, pictures in panels, frames But a building erected by one tenant filled with satin, attached to the walls, in common upon the joint premises, in and statues, figures, vases, and stone the absence of any contract allowing it to garden seats, are fixtures, and pass to the remain personalty becomes

a part of remainderman. D'Eyncourt v. Gregory, the realty, and is joint property. Aldrich 3 Eq. Cas. (L. R.) 380.

v. Husband, 131 Mass. 480. A tenant for life cannot by an agree- One co-tenant who has the general ment with a sub-tenant for years prevent oversight of the business of a marine railthe remainderman from taking posses. way, receiving the income and paying sion of the fixtures erected by him during the bills, has no right to sell the whole his tenancy, and left on the premises railway; and if he does, his co-tenant may after the termination of the life estate. maintain trover against the purchaser, Haflick v. Stober, 11 O. St. 482; White who has removed the rails, etc., and v. Arndt, i Whart. (Pa.) 91.

made a new railway upon his own land. In Massachusetts, the rights of a ten- Sırickland v. Parker, 34 Me. 263. ant for life, in regard to fixtures, are the Where in the partition of real estate,

as those of an ordinary tenant. between tenants in common, and consistWhiting v. Braston, 4 Pick. (Mass.) 310. ing in part of a woollen factory, it was 2. Parsons v. Copeland, 38 Me. 537 held that machinery which was not affixed

same

8. Vendor and Vendee.-Between vendor and vendee the strict rule of the common law prevails, and whatever fixtures are annexed to the freehold at the time of the conveyance pass with the estate to the vendee, unless there be some express provision to the contrary.' Nor will a verbal reservation be sufficient, but

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or fastened to the building or to the land regard to them. Jarechi 2'. Philharmonic should be treated as personal property. Soc., 79 Pa. St. 403; Vaughn 21. HaldeWalker 7'. Sherman, 20 Wend. (N. Y.) man, 33 Pa. St. 522; Rogers 7. Crow, 40 636.

Mo. 91; Towne v. Fiske, 127 Mass. 1. Harkness V, Sears, 26 Ala. 493. 125; Guthrie v. Jones, 108 Mass. 191; Fratt v. Whittier, 58 Cal. 126; Pea v. McKeage 0. Hanover Ins. Co., 81 Pea. 35 Ind. 387; Connor v. Coffin, 22 N. Y. 38; S. C., 37 Amer. Rep. 471; N. H. 538; Clore v. Lambert, 78 Ky. Montague Dent, Rich (S. 224; Johnson v Wiseman, 4 Met. (Ky.) C. L. R.) 135. However, when the 357; Smith v. Commonwealth, 14 Bush owner of a house, in order to induce the (Ky.). 31; Kirwan v. Latour, i H. & J. vendee to purchase it. gave him to un(Md.) 289; Dispatch Line v. Bellamy derstand that the gas fixtures were a part Mtg. Co., 12 N. Y. 205; Miller v. Plumb, of the realty, it was held that such in6 Cow. (N. Y.) 665; Farrar v. Stackpole, ducement was sufficient evidence that 6 Me. 154; Davis v. Buffum, 51 Me. the owner intended to make them a per160; Cohen v. Kyler, 27 Mo. 122; Hutch- manent attachment to the house, and ins v. Masterson, 46 Tex. 551; Preston that they passed to the vendee.

Funk v. v. Briggs, 16 Vi. 124.

Brigaldi, 4 Daly (N. Y.), 359. Eastman, J., says: “As between Partitions, gas - pipes, water - pipes, grantor and grantee, the law is more wash-basins, and water-closets are such favorable for the grantee than it is for fixtures as, in the absence of a contrary the tenant. Between them the strict intention between vendor and vendee, rule of the common law still prevails, will pass by a contract of sale and conand the grantee holds all fixtures, whether veyance of the stores and premises confor trade and manufacture, or for the taining them; and it is immaterial that purpose of agriculture or habitation." such fixtures were put in by the tenant Connor v. Coffin 22 N. H. 538. In this of the vendor, who would have a right to case it was held that manure made in the remove them as against the landlord. ordinary course of carrying on a farm, Smyth v. Sturges (N. Y.), 15 N. E. R. and which is on the premises at the time 544. of the sale and conveyance, will pass to It has been held that by the terms of a the grantee.

See also Kittredge v. deed, which reserved the right to remove Woods. 3 N. H 503 ; Stone v. Proc- furniture, pictures, and carpets, but that tor, 2 D. Chip. (VI.) 114 ; Parsons v. none of the permanent fixtures or appurCamp, 11 Conn. 525.

tenances should be removed, the gas fixThe conveyance of a saw-mill and ap- tures, chandeliers, globes, etc., used in purtenances passes the title to the mill the hotel situated on the lot conveyed chain, dogs and bars being in their proper passed by the conveyance to the purplace when the conveyance was made. chaser. Fratt v. Whittier, 58 Cal. 125. Farrar v. Stackpole, 6 Me. 154.

See also Johnson v. Wiseman, 4 Met. In a conveyance of a mill privilege by (Ken.) 357; Smith v. Commonwealth, 14 metes and bounds, there was a distinct Bush (Ken.), 31; Chapman v. Union clause conveying “ the machinery and Mut. Life Ins. Co., 4 Ill. Ap. 29. its appurtenances” of the mill, “ with the A house, mill, and machinery sold to right to use said machinery in said mill the owner of land on condition that they for two years." The mill was not within should remain personal property, with the metes and bounds named, nor was title in the vendor until paid for, do not it, except the two years' use, conveyed become incorporated in the realty until by any description. Held, that the ma- the condition is fulfilled. Harkey ?'. chinery and its appurtenances passed as Cain (Tex.), 6 S. W. Rep. 637. personalty. Merrill v. Wyman, 15 &t. An organ in a church, fixed in a recess Rep. 58.

made on purpose for it, was held to be Lamps, chandeliers, and gas fixtures, real estate, and passed with the premises though often sold with the house, are not to the vendee. Rogers 2'. Crow. 40 Mo. fixtures, and will not pass to the vendee, 91; Chapman v. Union Mutual Life Inunless there be a special agreement in surance Co., + Ill. Ap. 29.

they must be accepted by the terms of the deed.1 Parol proof of a usage may be received in explanation of the terms of the deed.2 Fixtures pass to a bona fide purchaser of the real estate, notwithstanding an agreement between the owner of the land and the vendor of the fixtures that they should remain personal propcrty 3 But such agreements are valid between the parties making

111. 302.

A steam-engine with its fixtures, used The verbal sale of brick walls of a to drive a bark mill and pounders to burnt building is void, as being within the break hides in a tannery, erected by the Statute of Frauds. Myers v. Schemp, owner of the land, is real property, and 67 III. 469. See also Hutchins v. Masterpasses by the sale of the land. Oves v. son, 46 Tex. 551; Landon v. Platt, 34 Oglesby, 7 Watts (Pa.), 106. See also Conn. 517. Morgan v. Arthurs & Co., 3 Watts (Pa.), A vendor of an engine, boiler, and ma140. But a steam-boiler and attach- chinery, knowing that they were to be anments, having been excepted by the terms nexed to real estate, took a chattel mortof the deed, become personal property. gage for a part of the purchase price, but Badger v. Batavia Paper Mfg. Co., 70 failed to register it. The vendee an

nexed them to real estate which he had A banker's safe, though bricked in, is already conveyed by mortgage.

It was a removable fixture between vendor and held that the lien of the chattel mortgavendee. Moody v. Aiken, 50 Tex. 65. gee would be protected so far as it would Compare Tolger v. Kenner, 24 La. Ann. not diminish the security which the real436.

estate mortgagee would have had if the It is not necessary that the reservation annexation had not been made. Campof fixtures be made in deed conveying bell v. Roddy (N. J.), 14 At. Rep. 279. the real estate. Pea v. Pea, 35 Ind. 387. See also Henkle v. Dillon (Oreg.), 15

When land is conveyed which is in Pac. Rep. 148. the possession of a tenant the vendee In Sword 7. Low, 26 Cent. Law Jour. takes it subject to the right of the lessee 211, it was held that an agreement to remove tenant's fixtures. Davis v. between the mortgagor and mortgagee Butium. 51 Me. 160; Powers v. Dennis that a steam-engine and boiler attached son, 30 Vt. 752; Kerr v. Kingsbury, 39 to realty should remain personal property Mich. 150; Dubois v. Kelly, io Barb. and be subjected to a chattel mortgage (N. Y.) 496. But it has been held that a is valid, and that a subsequent mortgage building occupied by a person who had upon the real estate would not hold them erected it in accordance with a license as real estate when the mode of attachfrom the owner of the land passes to the ment was such that they could be removed vendee, and that such occupation is not without injury to the freehold. such a notice as will affect his rights to A, the owner of real estate upon claim the building as real estate. Price which was situated a machine shop, exev. Case, 1o Conn. 375.

cuted a mortgage to B, upon the land 1. Smith v. Price, 39 I11. 28; McLaugh. and machine shop and appurtenances, lin v. Johnson, 46 III. 163; Aldrich v. and afterward executed to C a chaitel Husband, 131 Mass. 480; McKeage v. mortgage upon the tools, patterns, and Hanover Ins. Co., 81 N. Y. 38; Noble v. movable fixtures in the shop. It was held Bosworth, 19 Pick. (Mass.) 314; Connor that a verbal agreement between A and v. Coffin, 22 N. H. 538; Bond v. Cope, B, that the properly mortgaged to C 71 N. Car. 97; Ripley v. Paige, 12 Vt. 353. should remain personal property and not

A parol license granting to a lessee the be covered by the real-estate mortgage, right to remove buildings erected by him was valid, and that subsequent purchasis valid. Dubois v. Kelley, 10 Barb. (N. ers and mortgagees could have the ad.Y.) 496.

vantage of it. Frederick 2. Devol, 15 Evidence of oral statements of the Ind. 357. See also Ford v. Cobb, 20 N. purchaser at the time of the purchase of Y.

344. land as to his intention to build a shop 2. Farrar v. Stackpole, 6 Me. 154. thereon and place in it machinery for a 3. Landon v. Plati, 34 Conn. 517: manufacturing establishment is admissi- Bringhalff v. Munzenmaier, 20 lowa, 513; ble as bearing on the question whether Rowand v. Anderson, 33 Kan. 264; machinery actually found upon the land Knowlton v. Johnson, 37 Mich. 47; is in the nature of fixtures. Taylor v. Richardson v. Copeland, 6 Gray (Mass.), Collins, 51 Wis. 123.

536; Southbridge Savings Bank v. Exe.

them where the rights of third persons do not intervene.1 Fixtures erected by a person in possession of land under a contract of purchase from the owner become a part of the realty.”

IV. Agricultural Fixtures.—The right to remove fixtures that have been erected for the purposes of agriculture has not received the ter Works, 127 Mass. 542, Fryatt v. Sul. latent equities or parol agreements or livan Co., 5 Hill (N. Y.), 116; Mott v. understandings by which the building Palmer, I N. Y. 564; Keeler v. Keeler, was to be personal property, and he have 31 N. J. E. 181; Case Míg Co. v. the right to remove it either as a trade Garver (Ohio), 13 N. East, Rep. 493; fixture or otherwise.Forman v. Goepper, 14 Ohio St. 558; It has been held that a building erected Brennan y. Whitaker, 15 Ohio St. 446; by the license of the owner of the land Ridgway Stove Co. v. Way, 6 N. E. granted to another person upon the land Rep. 714; Sinker, Davis & Co. v. Com- of the licensor passes to a bona fide purparel, 62 Tex. 470; Frankland v. Moul- chaser of the land who has no knowledge ton, 5 Wis. 1. Compare Ford v. Cobb, 20 of the license. Prince v. Case, 10 Conn. N. Y. 344: Kinsey v. Bailey, 9 Hun (N. 375. See also Priestly v. Johnson, 67 Mo. Y.). 452; Tifft v. Horton, 53 N. Y. 377; 632. Compare Tapley v. Smith, 18 Me. 12. Russell v. Richards, 10 Me. 429; Tapley Where personal property is wrong7. Smith, 18. Me. 12; Sullivan v. Jones, fully annexed to the really by the owner 14 S. Car. 362.

of the land, the remedy for the wrong is Where the owner of a machine adapted against the wrong-doer, and not against for use in a flouring-mill consigns it to an innocent purchaser of the land. Voorhimself in the care of another to have it hees v. McGinnis, 48 N. Y. 278. See also tested in a flouring-mill belonging to a Fryalt v. Sullivan Co., 5 Hill (N. Y.). 116; third person, and the machine is set up Frankland v. Moulton, 5 Wis. v. Wood. by that other person in the mill on legs ruff, etc., Iron Works v. Adams. 37 and attached to the floor with screws, and Conn. 233; Mott v. Palmer, i N. Y. 564; to the main shafting of the mill with Knowlton v. Johnson, 37 Mich. 47. belis and pulleys, the machine does not Railroad ties wrongfully annexed to the thereby become a fixture as between realty by a sub-contractor become a part the owner and purchaser of the realty. of the realty, and trover will not lie Walker et al. v. Grand Rapids Flouring against the railroad company for their Mill Co. (Wis.), 35 N. W. Rep. 332. conversion. Detroit & B. C. R. Co.

Where an engine and boiler were sold v. Busch, 43 Mich. 571. to the owner of land, with an agreement

Fixtures erected by one person upon that they were to remain personal prop. the land of another in accordance with a erty until a chattel mortgage executed to license or agreement pass under a conthe vendor of the machinery for the pur- veyance of the land to a bona fide purchase price was paid, it was held that the chaser. Prince v. Case, 10 Conn. 375; owner of the land would be estopped Wilgus v. Gettings, 21 Iowa, 177; Rowand from claiming them as really as against V. Anderson, 33 Kan. 264; Hoax v. Seat, the vendor, and so would a purchaser at 26 Mo. 178; Haven v. Emery, 33 N. H. a sheriff's sale of the real estate, as he 66: Powers v. Dennison, 30 Vt. 752. acquired only the rights of the debtor. Standing trees sold as chattels by the Sisson 2. Hibbard, 75 N. Y. 542. See also owner of the land pass to a bona fide purTifft v. Horton, 53 N. Y. 377; Badger v. chaser of the land without notice of the Batavia Paper Mig Co., 70 III. 302. sale. Byassee v. Reese, 4. Met. (Ken.)

A mortgagee is entitled to buildings 372. And also fences. Rowand 2. Anderwhich were on the premises mortgaged son, 33 Kan. 264; s.c.,52 Amer. Rep. 529. at the time the mortgage was given, not- 1. Badger v.. Batavia Paper Co., 70 withstanding the fact that the life-tenant Ill. 302; Sisson v. Hibbard, 75 N. Y. 542; and mortgagor had agreed that the build- Eaves 2. Estes, 10 Kan. 314; Outo v. ings should remain personal property, Specht, 11 Cent. Rep. 244. and the purchaser at the sale on foreclo- 2. Westgate 7'. Nixon, 125 Mass. 304; sure is entitled to the sam efavor. Ste- King v. Johnson, 7 Gray (Mass.). 239; vens v. Rose (Mich.), 13 West. Rep 765. Perkins v. Swank, 43 Miss. 349; Lapham In this case the court say: “ Under the v Norton, 71 Me. 83; Hinkley & Egery circumstances of this case and the finding Iron Co. v. Black, 70 Me. 473; Moore v. of the jury, the plaintiff is in the posi- Valentine, 77 N. Car. 188; Central Branch tion of a bona fide purchaser for value, R. Co. v. Fritz, 20 Kan. 430. Compare and the defendant cannot set up any Hendy v. Dinkerhoff, 57 Cal. 3.

same favor in the English courts as that extended to the right of removal of trade fixtures, 1 But in the United States there is at least a strong tendency to place both kinds of fixtures on the same footing.”

1. Elwes v. Mawe, 3 East, 38 In this for the purpose of preparing lumber for case, which is a leading one on the sub- market are removable fixtures. Perkins ject of fixtures, Lord Ellenborough says: '. Swank. 43 Miss. 349. Also a cotton gin * But no adjudged case has yet gone the and press, and grist-mill. Mc Junken 2', length of establishing that buildings Dupree, 44 Tex. 500. But cotton-gins subservient to purposes of agriculture, as erected by the owner of the land are irredistinguished from those of trade, have movable fixtures. Latham v. Blakely, been removable by an executor or a tenant 70 N. Car. 369; Bond v. Cope, 71 N. Car, for life, nor by the tenant himself who 97; Degraffenreid v. Scruggs, 4 Humph. built them during the term." See also (T 451. The same privilege is exPerkins v. Swank, 43 Miss. 349; Gaffield tended to nurserymen; and where a nur. v Hapgood, 17 Pick. (Mass.) 192-195; seryman leases ground for the purpose of Wing i'. Gray, 36 Vt. 261-267.

carrying on the business of nurturing 2. Harkness v. Sears, 26 Ala. 493; trees and plants, in the absence of any ex: Perkins v. Swank, 43 Miss. 349; Dubois press agreement the interest of the ienv. Kelley. 10 Barb. (N. Y.) 496; Leland ant continues until the purpose is accomV, Gassett, 17 Vi. 403; Wing v. Gray, plished. King v. Wilcomb. 7 Barb. (N. 36 Vt. 261.

Y.) 263; Penton 2. Robert, 2 East, 83; Judge Story says:

“ But between land- Miller v. Baker, I Met. (Mass.) 27; lord and tenant it is not so clear that the Wyndham v. Way, 4 Taunt. 316. rigid rule of the common law, at least as Nursery trees planted by the owner of it is expounded in 3 East, 38, was so ap- the soil pass to the mortgagee on foreplicable to the situation as to give rise to closure, notwithstanding the owner of the necessary presumption in its favor. The trees had given a chattel mortgage upon country was a wilderness, and the univer- them, which was recorded prior to ihe sal policy was to procure its cultivation judicial sale. Adams v. Beadle, 47 Town, and improvement. The owner of the 439. See also Maples v. Millon, 31 Conn. soil as well as the public had every motive 598. to encourage the tenant to devote himself Hop-poles put on a farm by a tenant for to agriculture, and to favor any erections his temporary use, with the intention of which should aid this result. Yet in the removing them, are removable as between comparative poverty of the country what him and his landlord and his landlord's tenant could afford to erect fixtures of grantee. Wing v. Gray, 36 Vt. 261. much expense or value if he was to lose But if kept on the farm for permanent his whole interest therein by the very act use, they pass to a vendee. Bishop v. of erection? His cabin or log hut, however Bishop, 11 N. Y. 123. necessary for any improvement of the Fences of all kinds, and without refersoil, would cease to be his the moment it ence to the manner in which they are was finished. It might therefore deserve annexed to the soil, pass with the land as consideration, whether in case the doctrine fixtures. Smith v.Carroll, 4 Greene (lowa), were not previously adopted in a State by 146; Goodrich v. Jones, 2 Hill (N. Y.), some authoritative practice or adjudica. 142; Glidden v. Bennett, 43 N. H. 300; tion, it ought to be assumed by this court 12 V1. 353; Rowan v. Anderson, 33 Kan. as a part of the jurisprudence of such 264; Ropps v. Barker, 4 Pick. (Mass.) State upon the mere footing of its exist- 239; Mitchel v. Billingsley, 17 Ala. 391; ence in the common law," Van Ness v. Emrich v. Ireland, 55 Miss. 390. Even if Pacard, 2 Pet. (U. S.) 137. In this case a temporarily detached. Goodrich v. Jones, dairyman was allowed to remove a barn 2 Hill (N. Y.), 142; McLaughlin v. Johnfrom the farm which he had leased, not son, 46 III. 163; Or if erected by misbecause it was an agricultural fixture, but take, or under claim of right to the land. rather because it was a trade fixture; and Emrich 21. Ireland, 55 Miss. 390. In this for the same reason cider-mills have been case it was held that a purchaser of land, allowed to be removed by farm tenants. who did not entertain the honest belief Holmes v. Tremper, 20 Johns. (N. Y.) 29. that he was the true

owner, cannot Compare Wadleigh 7. Janvrin, 41 N. H. assume the merit of being a purchaser in 503.

good faith, and is responsible in damages So it has been held that a saw-mill and for the removal of fences which he him. machinery erected by the lessce of a farm self had placed upon the land. See also

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