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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

1. Dudley v. Warde, Amb. Ch. Rep. 113. See also Elwes 7. Mawe, 3 East, 38; Lawton 7. Lawton, 3 Atk. 13; 10 American Jurist. 60. In the case of Lawton v. Lawton. 3 Atk. 13, Lord Hardwicke said. "This is not a case between an ancestor and heir, but an intermediate case between a tenant for life and remainderman. In the reason of the thing the situation of the tenant for life comes near to that of a common tenant, where the goods of the public is the material consideration. These reasons of public benefit and convenience weigh greatly with me, and are a principal ingredient in my present opinion.

Inasmuch as the executor of a tenant for life has more favor shown him than the executor of the owner of the land, it follows that whatever an executor of the freeholder could remove would be also removable by the executor of the life tenant. But in some cases the executor has been permitted to remove ornamental fixtures against the will of the heir. 2 Smith's Leading Cas. 197; Harvey v. Harvey, 2 Strange, 1218. Hangings nailed to the wall go to the executor. Squier v. Mayer, 2 Freem. 249. But pictures and glasses put up instead of wainscot go to the heir, and not to the executor. Cave v. Cave, 2 Vern. 508.

Tapestries, pictures in panels, frames filled with satin, attached to the walls, and statues, figures, vases, and stone garden seats, are fixtures, and pass to the remainderman. D'Eyncourt v. Gregory, 3 Eq. Cas. (L. R.) 380.

A tenant for life cannot by an agreement with a sub-tenant for years prevent the remainderman from taking possession of the fixtures erected by him during his tenancy, and left on the premises after the termination of the life estate. Haflick v. Stober, II O. St. 482; White v. Arndt, 1 Whart. (Pa.) 91.

In Massachusetts, the rights of a tenant for life, in regard to fixtures, are the same as those of an ordinary tenant. Whiting v. Braston, 4 Pick. (Mass.) 310.

2. Parsons v. Copeland, 38 Me. 537

In this case Tenny, J., in giving the opinion of the court, says: "Whatever was in the Woolen Factory,' situated upon the land described and used in the appro priate business thereof, could not have been considered by the commissioners to be temporary for one party more than for the other, and therefore cannot fall within the principle applicable as between landlord and tenant. Hence it is a case where the doctrines which govern between vendor and vendee are to have their most extended influence." In this case it was held that if one of the tenants in common rightfully erected buildings upon the common property for his own after a co-tenant had filed his petition for a division, it could not be appraised by the commissioners in partition in estimating the value of the whole property.

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Where a boiler, engine, and stack were erected on land of the plaintiff at the joint expense of himself and the defendant, under an agreement to use the same as a common source of power, without limitation as to time, the interests created thereby in the fixtures are in the nature of real estate; and if one of the tenants in common exclude the other from the use and possession of such fixtures, ejectment will lie to enforce the agreement. Hill v. Hill, 43 Pa. St. 521.

But a building erected by one tenant in common upon the joint premises, in the absence of any contract allowing it to remain personalty becomes a part of the realty, and is joint property. Aldrich v. Husband, 131 Mass. 480.

One co-tenant who has the general oversight of the business of a marine railway, receiving the income and paying the bills, has no right to sell the whole railway; and if he does, his co-tenant may maintain trover against the purchaser, who has removed the rails, etc., and made a new railway upon his own land. Strickland v. Parker. 34 Me. 263.

Where in the partition of real estate. between tenants in common, and consisting in part of a woollen factory, it was held that machinery which was not affixed

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

or fastened to the building or to the land should be treated as personal property. Walker . Sherman, 20 Wend. (N. Y.) 636.

1. Harkness v. Sears, 26 Ala. 493. Fratt . Whittier, 58 Cal. 126; Pea v. Pea, 35 Ind. 387; Connor v. Coffin, 22 N. H. 538; Clore v. Lambert, 78 Ky. 224: Johnson v Wiseman, 4 Met. (Ky.) 357; Smith v. Commonwealth, 14 Bush (Ky.). 31; Kirwan v. Latour, 1 H. & J. (Md.) 289; Dispatch Line v. Bellamy Mig. Co, 12 N. Y. 205; Miller v. Plumb, 6 Cow. (N. Y.) 665; Farrar v. Stackpole, 6 Me. 154; Davis v. Buffum, 51 Me. 160; Cohen v. Kyler, 27 Mo. 122; Hutchins . Masterson, 46 Tex. 551; Preston v. Briggs, 16 Vt. 124.

Eastman, J., says: 'As between grantor and grantee. the law is more favorable for the grantee than it is for the tenant. Between them the strict rule of the common law still prevails, and the grantee holds all fixtures, whether for trade and manufacture, or for the purpose of agriculture or habitation." Connor v. Coffin 22 N. H. 538. In this case it was held that manure made in the ordinary course of carrying on a farm, and which is on the premises at the time of the sale and conveyance, will pass to the grantee. See also Kittredge v. Woods, 3 N. H 503; Stone v. Proctor, 2 D. Chip. (Vt.) 114; Parsons v. Camp, 11 Conn. 525.

The conveyance of a saw-mill and appurtenances passes the title to the mill chain, dogs and bars being in their proper place when the conveyance was made. Farrar v. Stackpole, 6 Me. 154.

In a conveyance of a mill privilege by metes and bounds, there was a distinct clause conveying "the machinery and its appurtenances" of the mill," with the right to use said machinery in said mill for two years." The mill was not within the metes and bounds named, nor was it, except the two years' use, conveyed by any description. Held, that the machinery and its appurtenances passed as personalty. Merrill v. Wyman, 15 &t. Rep. 58.

Lamps, chandeliers, and gas fixtures, though often sold with the house, are not fixtures, and will not pass to the vendee, unless there be a special agreement in

regard to them. Jarechi . Philharmonic Soc., 79 Pa. St. 403; Vaughn v. Haldeman, 33 Pa. St. 522; Rogers v. Crow, 40 Mo. 91; Towne v. Fiske, 127 Mass. 125; Guthrie v. Jones, 108 Mass. 191; McKeage v. Hanover Ins. Co., 81 N. Y. 38; s. c., 37 Amer. Rep. 471; Montague V. Dent, IO Rich (S.

C. L. R.) 135. However, when the owner of a house, in order to induce the vendee to purchase it, gave him to understand that the gas fixtures were a part of the realty, it was held that such inducement was sufficient evidence that the owner intended to make them a permanent attachment to the house, and that they passed to the vendee. Funk v. Brigaldi, 4 Daly (N. Y.), 359.

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Partitions, gas pipes, water - pipes, wash-basins, and water-closets are such fixtures as, in the absence of a contrary intention between vendor and vendee, will pass by a contract of sale and conveyance of the stores and premises containing them; and it is immaterial that such fixtures were put in by the tenant of the vendor, who would have a right to remove them as against the landlord. Smyth v. Sturges (N. Y.), 15 N. E. R. 544.

It has been held that by the terms of a deed, which reserved the right to remove furniture, pictures, and carpets, but that none of the permanent fixtures or appurtenances should be removed, the gas fixtures, chandeliers, globes, etc., used in the hotel situated on the lot conveyed passed by the conveyance to the purchaser. Fratt v. Whittier, 58 Cal. 125. See also Johnson v. Wiseman, 4 Met. (Ken.) 357; Smith v. Commonwealth, 14 Bush (Ken.), 31; Chapman v. Union Mut. Life Ins. Co., 4 Ill. Ap. 29.

A house, mill, and machinery sold to the owner of land on condition that they should remain personal property, with title in the vendor until paid for, do not become incorporated in the realty until the condition is fulfilled. Harkey v. Cain (Tex.), 6 S. W. Rep. 637.

An organ in a church. fixed in a recess made on purpose for it, was held to be real estate, and passed with the premises to the vendee. Rogers . Crow. 40 Mo. 91; Chapman 7. Union Mutual Life Insurance Co., 4 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 property. But such agreements are valid between the parties making

A steam-engine with its fixtures, used to drive a bark mill and pounders to break hides in a tannery, erected by the owner of the land, is real property, and passes by the sale of the land. Oves v. Oglesby, 7 Watts (Pa.), 106. See also Morgan v. Arthurs & Co., 3 Watts (Pa), 140. But a steam-boiler and attachments, having been excepted by the terms of the deed, become personal property. Badger v. Batavia Paper Mfg. Co., 70 Ill. 302.

A banker's safe, though bricked in, is a removable fixture between vendor and vendee. Moody v. Aiken, 50 Tex. 65. Compare Tolger v. Kenner, 24 La. Ann. 436.

It is not necessary that the reservation of fixtures be made in deed conveying the real estate. Pea 7. Pea, 35 Ind. 387. When land is conveyed which is in the possession of a tenant the vendee takes it subject to the right of the lessee

to

remove tenant's fixtures. Davis v. Bufium, 51 Me. 160; Powers v. Dennison, 30 Vt. 752; Kerr v. Kingsbury, 39 Mich. 150; Dubois v. Kelly, 10 Barb. (N. Y.) 496. But it has been held that a building occupied by a person who had erected it in accordance with a license from the owner of the land passes to the vendee, and that such occupation is not such a notice as will affect his rights to claim the building as real estate. Price v. Case, 10 Conn. 375.

1. Smith v. Price, 39 Ill. 28; McLaughlin v. Johnson, 46 Ill. 163; Aldrich v. Husband, 131 Mass. 480; McKeage v. Hanover Ins. Co., 81 N. Y. 38; Noble v. Bosworth, 19 Pick. (Mass.) 314; Connor v. Coffin, 22 N. H. 538; Bond v. Cope, 71 N. Car. 97; Ripley v. Paige, 12 Vt. 353. A parol license granting to a lessee the right to remove buildings erected by him is valid. Dubois v. Kelley, 10 Barb. (N. .Y.) 496.

Evidence of oral statements of the purchaser at the time of the purchase of land as to his intention to build a shop thereon and place in it machinery for a manufacturing establishment is admissible as bearing on the question whether machinery actually found upon the land is in the nature of fixtures. Collins, 51 Wis. 123.

Taylor v.

The verbal sale of brick walls of a burnt building is void, as being within the Statute of Frauds. Myers v. Schemp, 67 Ill. 469. See also Hutchins v. Masterson, 46 Tex. 551; Landon v. Platt, 34 Conn. 517.

A vendor of an engine, boiler, and machinery, knowing that they were to be annexed to real estate, took a chattel mortgage for a part of the purchase price, but failed to register it. The vendee an nexed them to real estate which he had already conveyed by mortgage. It was held that the lien of the chattel mortgagee would be protected so far as it would not diminish the security which the realestate mortgagee would have had if the annexation had not been made. Campbell v. Roddy (N. J.), 14 At. Rep. 279. See also Henkle v. Dillon (Oreg.), 15 Pac. Rep. 148.

In Sword v. Low, 26 Cent. Law Jour. 211, it was held that an agreement between the mortgagor and mortgagee that a steam-engine and boiler attached to realty should remain personal property and be subjected to a chattel mortgage is valid, and that a subsequent mortgage upon the real estate would not hold them as real estate when the mode of attachment was such that they could be removed without injury to the freehold.

A, the owner of real estate upon which was situated a machine shop, executed a mortgage to B, upon the land and machine shop and appurtenances, and afterward executed to C a chattel mortgage upon the tools, patterns, and movable fixtures in the shop. It was held that a verbal agreement between A and B, that the property mortgaged to C should remain personal property and not be covered by the real-estate mortgage, was valid, and that subsequent purchasers and mortgagees could have the advantage of it. Frederick v. Devol, 15 Ind. 357. See also Ford v. Cobb, 20 N. Y. 344.

2. Farrar 7. Stackpole, 6 Me. 154. 3. Landon 7. Platt, 34 Conn. 517: Bringhalff v. Munzenmaier. 20 Iowa, 513; Rowand V. Anderson, 33 Kan. 264; Knowlton v. Johnson, 37 Mich. 47; Richardson v. Copeland, 6 Gray (Mass.), 536; Southbridge Savings Bank v. Exc

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.2

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. Sullivan Co., 5 Hill (N. Y.), 116; Mott v. Palmer, I N. Y. 564; Keeler v. Keeler, 31 N. J. E. 181; Case Mfg. Co. v. Garver (Ohio), 13 N. East, Rep. 493; Fortman v. Goepper, 14 Ohio St. 558; Brennan v. Whitaker, 15 Ohio St. 446; Ridgway Stove Co. v. Way, 6 N. E. Rep. 714; Sinker, Davis & Co. v. Comparet, 62 Tex. 470; Frankland v. Moulton, 5 Wis. I. Compare Ford v. Cobb, 20 N. Y. 344: Kinsey v. Bailey, 9 Hun (N. Y.). 452; Tifft v. Horton, 53 N. Y. 377; Russell v. Richards, 10 Me. 429; Tapley v. Smith, 18 Me. 12; Sullivan v. Jones, 14 S. Car. 362.

Where the owner of a machine adapted for use in a flouring-mill consigns it to himself in the care of another to have it tested in a flouring-mill belonging to a third person, and the machine is set up by that other person in the mill on legs and attached to the floor with screws, and to the main shafting of the mill with belts and pulleys, the machine does not thereby become a fixture as between the owner and purchaser of the realty. Walker et al. v. Grand Rapids Flouring Mill Co. (Wis.), 35 N. W. Rep. 332.

Where an engine and boiler were sold to the owner of land, with an agreement that they were to remain personal prop erty until a chattel mortgage executed to the vendor of the machinery for the purchase price was paid, it was held that the owner of the land would be estopped from claiming them as realty as against the vendor, and so would a purchaser at a sheriff's sale of the real estate, as he acquired only the rights of the debtor. Sisson v. Hibbard, 75 N. Y. 542. See also Tifft v. Horton, 53 N. Y. 377; Badger v. Batavia Paper Mfg Co., 70 Ill. 302.

A mortgagee is entitled to buildings which were on the premises mortgaged at the time the mortgage was given, notwithstanding the fact that the life-tenant and mortgagor had agreed that the buildings should remain personal property, and the purchaser at the sale on foreclo sure is entitled to the sam efavor. Stevens v. Rose (Mich.), 13 West. Rep 765. In this case the court say: "Under the circumstances of this case and the finding of the jury, the plaintiff is in the position of a bona fide purchaser for value, and the defendant cannot set up any

latent equities or parol agreements or understandings by which the building was to be personal property, and he have the right to remove it either as a trade fixture or otherwise."

It has been held that a building erected by the license of the owner of the land granted to another person upon the land of the licensor passes to a bona fide purchaser of the land who has no knowledge of the license. Prince v. Case, 10 Conn. 375. See also Priestly v. Johnson, 67 Mo. 632. Compare Tapley v. Smith, 18 Me. 12. Where personal property is wrongfully annexed to the realty by the owner of the land, the remedy for the wrong is against the wrong-doer, and not against an innocent purchaser of the land. Voorhees v. McGinnis, 48 N. Y. 278. See also Fryatt v. Sullivan Co., 5 Hill (N. Y.). 116; Frankland v. Moulton, 5 Wis. v. Woodruff, etc., Iron Works v. Adams, 37 Conn. 233; Mott v. Palmer, 1 N. Y. 564; Knowlton v. Johnson, 37 Mich. 47.

Railroad ties wrongfully annexed to the realty by a sub-contractor become a part of the realty, and trover will not lie against the railroad company for their conversion. Detroit & B. C. R. Co. v. Busch, 43 Mich. 571.

Fixtures erected by one person upon the land of another in accordance with a license or agreement pass under a conveyance of the land to a bona fide purchaser. Prince v. Case, 10 Conn. 375; Wilgus v. Gettings, 21 Iowa, 177; Rowand v. Anderson, 33 Kan. 264; Hoax v. Seat, 26 Mo. 178; Haven v. Emery, 33 N. H. 66; Powers v. Dennison, 30 Vt. 752.

Standing trees sold as chattels by the owner of the land pass to a bona fide purchaser of the land without notice of the sale. Byassee v. Reese, 4 Met. (Ken.) 372. And also fences. Rowand 7. Anderson, 33 Kan. 264; s.c., 52 Amer. Rep. 529.

1. Badger v. Batavia Paper Co., 70 Ill. 302; Sisson v. Hibbard, 75 N. Y. 542; Eaves 2. Estes, 10 Kan. 314; Otto v. Specht, 11 Cent. Rep. 244.

2. Westgate z. Nixon, 128 Mass. 304; King v. Johnson, 7 Gray (Mass.). 239; Perkins 2. Swank, 43 Miss. 349; Lapham v Norton, 71 Me. 83; Hinkley & Egery Iron Co. v. Black, 70 Me. 473; Moore v. Valentine, 77 N. Car. 188; Central Branch R. Co. v. Fritz, 20 Kan. 430. Compare 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.2

1. Elwes v. Mawe, East, 38 In this case, which is a leading one on the subject of fixtures, Lord Ellenborough says: 'But no adjudged case has yet gone the length of establishing that buildings subservient to purposes of agriculture, as distinguished from those of trade, have been removable by an executor or a tenant for life, nor by the tenant himself who built them during the term." See also Perkins v. Swank, 43 Miss. 349; Gaffield v Hapgood, 17 Pick. (Mass.) 192-195; Wing 7. Gray, 36 Vt. 261-267.

2. Harkness v. Sears, 26 Ala. 493; Perkins v. Swank, 43 Miss. 349; Dubois v. Kelley, 10 Barb. (N. Y.) 496; Leland v, Gassett, 17 Vt. 403; Wing v. Gray, 36 Vt. 261.

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Judge Story says: 'But between landlord and tenant it is not so clear that the rigid rule of the common law, at least as it is expounded in 3 East, 38, was so applicable to the situation as to give rise to necessary presumption in its favor. The country was a wilderness, and the universal policy was to procure its cultivation and improvement. The owner of the soil as well as the public had every motive to encourage the tenant to devote himself to agriculture, and to favor any erections which should aid this result. Yet in the comparative poverty of the country what tenant could afford to erect fixtures of much expense or value if he was to lose his whole interest therein by the very act of erection? His cabin or log hut, however necessary for any improvement of the soil, would cease to be his the moment it was finished. It might therefore deserve consideration, whether in case the doctrine were not previously adopted in a State by some authoritative practice or adjudica tion, it ought to be assumed by this court as a part of the jurisprudence of such State upon the mere footing of its existence in the common law." Van Ness v. Pacard, 2 Pet. (U. S.) 137. In this case a dairyman was allowed to remove a barn from the farm which he had leased, not because it was an agricultural fixture, but rather because it was a trade fixture; and for the same reason cider-mills have been allowed to be removed by farm tenants. Holmes v. Tremper, 20 Johns. (N. Y.) 29. Compare Wadleigh v. Janvrin, 41 N. H.

503.

So it has been held that a saw-mill and machinery erected by the lessee of a farm

for the purpose of preparing lumber for market are removable fixtures. Perkins 7. Swank, 43 Miss. 349. Also a cotton gin and press, and grist-mill. McJunken v. Dupree, 44 Tex. 500. But cotton-gins erected by the owner of the land are irremovable fixtures. Latham v. Blakely, 70 N. Car. 369; Bond v. Cope, 71 N. Car. 97; Degraffenreid v. Scruggs, 4 Humph. (Tenn.) 451. The same privilege is extended to nurserymen; and where a nurseryman leases ground for the purpose of carrying on the business of nurturing trees and plants, in the absence of any express agreement the interest of the tenant continues until the purpose is accomplished. King v. Wilcomb, 7 Barb. (N. Y.) 263; Penton v. Robert, 2 East, 88; Miller v. Baker, 1 Met. (Mass.) 27; Wyndham v. Way, 4 Taunt. 316.

Nursery trees planted by the owner of the soil pass to the mortgagee on foreclosure, notwithstanding the owner of the trees had given a chattel mortgage upon them, which was recorded prior to the judicial sale. Adams v. Beadle, 47 Iowa, 439. See also Maples v. Millon, 31 Conn. 598.

Hop-poles put on a farm by a tenant for his temporary use, with the intention of removing them, are removable as between him and his landlord and his landlord's grantee. Wing v. Gray, 36 Vt. 261. But if kept on the farm for permanent use, they pass to a vendee. Bishop v. Bishop, II N. Y. 123.

Fences of all kinds, and without reference to the manner in which they are annexed to the soil, pass with the land as fixtures. Smith v. Carroll, 4 Greene (Iowa), 146; Goodrich v. Jones, 2 Hill (N. Y.). 142; Glidden v. Bennett, 43 N. H. 306; 12 Vt. 353; Rowan v. Anderson, 33 Kan. 264; Ropps v. Barker, 4 Pick. (Mass.) 239; Mitchel v. Billingsley, 17 Ala. 391; Emrich v. Ireland, 55 Miss. 390. Even if temporarily detached. Goodrich v. Jones, 2 Hill (N. Y.), 142; McLaughlin v. Johnson, 46 Ill. 163; Or if erected by mistake, or under claim of right to the land. Emrich v. Ireland, 55 Miss. 390. In this case it was held that a purchaser of land, who did not entertain the honest belief that he was the true owner, cannot assume the merit of being a purchaser in good faith, and is responsible in damages for the removal of fences which he himself had placed upon the land. See also

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