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V. Domestic Fixtures.-Domestic fixtures are annexations made by a tenant to the dwelling house which he occupies, to render his occupation more comfortable or more convenient. They are di vided into two classes, viz., useful and ornamental. They are removable by the tenant if their removal does not materially injure the dwelling. Af the present time the same favors are shown domestic fixtures by the law as those erected for trade purposes, although formerly the latter received the greater favor.1

VI. Ecclesiastical Fixtures.-Ecclesiastical fixtures are annexations made by the incumbent of an ecclesiastical benefice, and the question whether or not any particular annexation is removable generally arises between the executors of the incumbent and his successor. In respect to such annexations, the general rule is that the same principles apply between the executor of an incumbent and his successor as apply between the executor of a tenant for life and remainderman. The question generally arises with ref

Wentz . Fincher, 12 Ired. (N. Car.) 297; Burlerson 7. Teeple, 2 Greene (Iowa), 542; Seymour v. Watson, 5 Blackf.,(Ind.) 555; Blair . Worley, I Scam. (Ill.) 178.

tate.

opinion of the court, says: "In regard to an ecclesiastical benefice, the character and object of the building to which the chattel is attached, and for which it has been so attached, seem of very great importance in determining whether there was any intention to separate it permanently and irrevocably from the personal esHere there is an erection, in itself purely matter of luxury and ornament, which the testator might have pulled down, but which he probably wished to enjoy so long as he lived in the benefice, and therefore did not remove. To this. and for the purpose of completing that luxurious and ornamental creation, a chattel is so attached as to be detached without injury to the freehold. We think the inference is that it never ceased to be a chattel during the testator's life; that it continued to be so at the moment of his death, and therefore passed as part of the personal estate to the executors." See also Huntley v. Russell, 13 A. & E. 570.

1. Poole's Case, I Salk. 368. See also Herlakin's Case, 4 Coke, 64; Cave v. Cave, 2 Vern. 508; Harvey v. Harvey, 2 Strange, 1141; Lee v. Risden, 7 Taunton, 191; Lawton v. Lawton, 3 Atk. 13; Snedeker v. Warring, 12 N. Y. 170; McCracken v. Hall, 7 Ind. 30; 2 Taylor's Land. and Ten., $,547; Tiedman's Real Prop.

If an incumbent enter upon a benefice in which there are hangings, grates, iron backs to chimneys, not put there by the last incumbent, but have gone from successor to successor, he is entitled to them; but if the last incumbent placed them there for his own use, they go to the executor. 4 Burn's Eccl. Law (9th Ed.). 413

6; Gibbons' Law of Fixtures, 32. 2. Tyler's Law of Fixtures, 505; Martin v. Roe, 7 E. & B. 236. In this. case the incumbent of a benfice erected on the parsonage grounds two hot-houses with brick walls, and glass-work sliding up and down on pulleys, and working in 3. It may therefore, it is conceived, wooden frames which were bedded into be laid down that an incumbent will in mortar. On the death of the rector his general be entitled to fixtures of the same successor and executor both claimed the description as those which form part of glass-work, but it was held that as the the personal estate of the deceased tenrector himself would have had the right ant for life. Amos & Ferard's Law of to remove the building while he was alive, Fixtures (2d Ed ), 146. See also Gibson's the same right should be granted to his Cod. Jur. Eccl. 752; 2 Smith's Lead. Cas. executor. Lord Campbell, in giving the 197.

However, it has been held that rails as well as a string of fence may be personal property. Fahnestock v. Gilham. 77 Ill. 637. See also Pennybecker v. McDougal, 48 Cal. 160.

A lessee of a farm used the old rails, which were the refuse of a farm, and which had been removed for fuel, under an agreement that he could take away firewood "from fallen trees or dead wood." Held, that trespass would not lie, and that they were not a partof the realty. Fullington . Goodwin, 7 Vt. 641.

erence to matters of ornament or convenience annexed to the buildings on the land held by a resident incumbent.1

VII. Trade Fixtures.--Fixtures erected by a tenant on leased premises for the purpose of carrying on a trade or a manufactory, and removable by him during the term. They include buildings,3

1. Tyler's Law of Fixtures, 507. The ornaments in a bishop's chapel pass to the successor, and not to the executors. Corven's Case, 12 Coke, 106.

2. Harkness v. Sears, 26 Ala. 493; Perkins v. Swank, 43 Miss. 349; Weathersby v. Sleeper, 42 Miss. 732; Holbrook v. Chamberlin, 116 Mass. 155; Watriss v. First Nat. Bank, 124 Mass. 571; Hill v. Sewald, 53 Pa. St. 271; Van Ness v. Pacard, 2 Pet. 137.

Sir John Cross, in Ex parte Broadwood, 1 Mont. D. & De G. 631, says: • In Ex parte Lloyd in re Ogden, 3 Dea. & Ch. 765, this court held that an equitable mortgagee of a cotton-mill carried all the fixtures, although they were erected for the purpose of trade, and the mortgagor continued in possession of them at the time of his bankruptcy. It has always seemed to me that the circumstances of fixtures being what are called trade fixtures is of importance only in questions depending between landlord and tenant, and does not affect the consideration of those arising between mortgagor and mortgagee. Much confusion has in my opinion been created in the conflicting cases on this subject by not attending to this distinction.' And in Oves v. Oglesby it is said: "Privilege for the benefit of trade holds only betwixt landlord and tenant, not betwixt third persons and the owner of the soil." Oves v. Oglesby, 7 Watts. (Pa.), 106.

place of the old furnaces, which had not been sold to them. Hay v. Tillyer (N. J.),14 Atl. Rep. 18.

It has been held that trade fixtures erected by a lessee after a verbal agreement with the landlord for the purchase of the premises became a part of the realty, and were subject to the vendor's lien. Perkins v. Swank, 43

Miss. 349. But compare Holbrook v.

Chamberlin, 116 Mass. 155; Smith v. Moore, 26 Ill. 392; Moore v. Smith, 24 Ill. 513.

3. Robinson v. Wright, 2 McArthur (U. S.), 54; Beers v. St. John, 16 Conn. 322; Walton v. Wray, 54 Iowa, 531; McIver v. Estabrook, 134 Mass. 550; Kissam v. Barclay, 17 Abbt. Pr. (N. Y.) 360; Beckwith v. Boyce, 9 Mo. 560; Railroad Co. v. Deal,90 N. Car. 111; Krouse v. Ross, 1. Cranch (C. C.), 368; Van Ness v. Packard, 2 Pet. (U. S.) 137; Penton v. Robert, 2 East, 88; Wansbrough v. Watson, 4 A. & E. 884; Rex v. Otley, 1 B. & Ad. 161.

Where land is leased for trade purposes and the lessees erect buildings and fixtures thereon, under the terms of the lease, which provides that on the abandonment of said business the buildings and fixtures shall revert back to the lessees, it was held that they remained personal property, and were not subject to a lien of attachment on the real estate. Melhop v. Meinhart, 70 Iowa, 685.

Buildings placed upon the land by agreement or consent of the freeholder remain personal property. Walton v. Wray, 54 Iowa, 531; Hines v. Ament, 43 Mo. 298; Priestly v. Johnson, 67 Mo. 632; Wells v. Baunister, 4 Mass. 513; Tapley v. Smith, 18 Me. 12; Russell v. Richards, 10 Me. 429, Ashman v. Williams. 8 Pick. (Mass.) 402; Fuller v. Tabor, 39 Me. 519; Weathersby v. Sleeper, 42 Miss. 732; Dame v. Dame, 38 N. H. 429. Compare Prince v. Case, 10 Conn. 375.

It does not matter whether the assent is given before or after the erection. Fuller v. Tabor, 39 Me. 519.

If the building is erected against the will of the landowner or without his consent, it becomes realty. Bonney v. Foss, 62 Me. 248; Cannon v. Copeland, 43 Ala. 252; Dart v. Hercules, 57 Ill. 446; Washburn v. Sproat. 16 Mass. 449; Honzick v. Delaglise, 65 Wis. 494.

Trade fixtures erected by a tenant are personal property during the continuance of the term. Kile v. Giebner (Pa. 1886), 7 Atl. Rep. 157; Walton v. Wray, 54 Iowa, 531; Lemar v. Miles, 4 Watts (Pa.), 330; Globe Marble Works v. Quinn, 76 N. Y. 23; Lamphere v. Lowe, 3 Neb. 131. Compare Pemberton v. King, 2 Dev. (N. Car.) L. 376. And it has been held that during the term, if the interest of the lessees in the land were sold for his debts, trade fixtures pass with the interest in the land as realty to the purchaser at the judicial sale. Dobschuetz v. Holliday, 82 Ill. 371; McNalley v. Connolly, 70 Cal. 3.

Where the lessees of premises used for manufacturing purposes erected furnaces to take the place of those that they had worn out in their business, they would have no right to remove such furnaces as trade fixtures, since they only took the

machinery,1 store fixtures, steam engines and boilers,3 gas fixtures, bowling-alleys and appurtenances, etc.

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VIII. Effect of Agreements.-It is stated by many courts as a general proposition, that the parties between whom the question of fixtures arises may by their agreements determine the character of annexations to real estate; that they may consider as personalty what the law regards as realty, and what the law regards as personalty they may consider as realty, and whatever their agreements the courts will enforce. However, this proposition is subject to several modifications.7

2

A building erected by persons claiming an estate in the land, but who are judicially evicted, can be replevied by them, although others after the eviction had placed the building on a stone foundation. Mills v. Redick, 1 Neb. 437. Compare Honzik v. Delaglise, 65 Wis. 494; Huebschmann v. McHenry, 29 Wis. 655; Dart v. Hercules, 57 Ill. 446.

But where a railroad company obtained the right of way over certain premises from the person in possession, supposing him to be the true owner, and entered upon the land and placed a railroad upon it, it was held that in proceedings against the true owner to condemn the land for railroad purposes he could not claim the improvements as part of the realty in assessing damages, Oregon R. & N. Co. v. Mosier, 14 Ore. 519.

Buildings erected for the purposes of trade or manufacture are removable without reference to their size or the materials of which they are constructed. Railroad Co. v. Deal, 90 N. Car. 111, Van Ness v. Pacard, 2 Pet. (U. S.) 137; Lawton v. Lawton, 3 Atk. 13.

A deed of land "with the buildings thereon," and other property, mentioning specific fixtures, and allowing grantor thirty days to remove property not sold, does not pass trade fixtures. Kirch v. Davies, 55 Wis. 287; Compare Elliott v. Bishop, 10 Ex. 496.

1. McNalley v. Connolly, 70 Cal. 3; Wheeler v. Bedell, 40 Mich. 693; Stokoe v. Upton, 40 Mich. 581; Moore v. Smith, 24 Ill. 513; Cook v. Transportation Co., 1 Den. (N. Y.) 91.

2. Josslyn v. McCabe, 46 Wis. 591; Guthrie v. Jones, 108 Mass. 191.

3. McNalley v. Connolly, 70 Cal. 3; Merritt v. Judd, 14 Cal. 60; Kelsey v. Durkee, 33 Barb. (N. Y.) 410; Hayes v. N. Y. Mining Co., 2 Colo. 273; Dobschuetz v. Holliday, 82 Ill. 371; Lawton v. Lawton, I Atk. 13. Compare Treadway V. Sharon, 7 Nev. 37.

Steam engines and boilers erected by a tenant on brick and stone foundations,

and bolted down solidly to the ground and walled in with brick arches, and dwellings erected by the tenant for miners to live in, standing on posts or dry stone walls, when such machinery and buildings were intended to be merely accessory to the mining operations under the lease, and when there was no intention in affixing them to the realty, and when they can be removed without material disturbance to the land, are trade fixtures. Conrad v. Saginaw Mining Co., 54 Mich. 249; s. c., 52 Am. Rep. 817. See also Cooper v. Johnson, 143 Mass. 108.

A steam-engine placed upon land owned by one member of a partnership, by the firm, for the purpose of giving motive-power to machinery, partakes of the nature of the machinery, and is a removable fixture. Robertson v. Corsett, 39 Mich. 777.

4. McCall v. Walter, 71 Ga. 287; Towne v. Fiske, 127 Mass. 125; Guthrie v. Jones, 108 Mass. 191; Lawrence v. Kemp, I Duer (N. Y.), 363; Hays v. Doane, 11 N. J. E. 84.

5. Hanrahan v. O'Reilly, 102 Mass. 201. In O'Brien v. Kusterer, 27 Mich. 289, it was held that a bar, bar fixtures, cupboard, bowling-alley ways and racks, attached by a tenant to a building occupied by him as a saloon, were permanent fixtures, and not removable as trade fixtures.

6. Fratt v. Whittier, 58 Cal. 126; Merritt v. Judd, 14 Cal. 60; Frederick v. Deval, 15 Ind. 357; Warner v. Kenning, 25 Minn. 173; Robertson V. Corsett, 39 Mich, 777; Foster v. Prentiss, 75 Me. 279; Hunt v. Bay State Iron Company, 97 Mass. 279; Curtis v. Riddle, 7 Allen (Mass.), 185; Brearley v. Cox, 24 N. J. L. 287; Sampson v. Graham, 96 Pa. St. 405; Sullivan v. Jones, 14 S. Car. 362; Smith v. Waggoner, 50 Wis. 155; Mansfield v. Blackburn, 6 Bing. (N. C.) 426; Penny v. Brown, 2 Starkie, 403; Naylor v. Collings, I Taunton, 19.

7. An agreement between the owner

IX. Time of Removal.-In the absence of a special contract removable fixtures must be removed during the time for which the premises are demised, or while the relation of landlord and tenant still exists under the original lease.1 Nor does it matter whether the lease expire by effluxion of time or by re-entry on forfeiture. Where the tenancy is uncertain in duration, as when it depends upon a contingency, or when the lessee is a tenant for life or at will, the law allows a reasonable time for the removal of fixtures. However, the landlord and tenant may stipulate as to

of land and the owner of the fixture that
the latter shall remain personal property
cannot affect the rights of a bona fide
purchaser of the land. Roswand v.
Anderson, 33 Kan. 264; Bartholomew v.
Hamilton, 105 Mass. 239; Fryatt. The
Sullivan Co., 5 Hill (N. Y.), 116; La-
custrine Fer. Co. v. L. G. & Fer. Co.,
82 N. Y. 476; Smith v. Waggoner, 50
Wis. I 55
See also, ante, VENDOR AND
VENDEE, note 4.
The agreement must be governed by
the Statute of Frauds. Myers v. Schemp,
67 Ill. 469; Trull. Fuller, 28 Me. 545.
But it has been held that the agreement
may be proven by parol. Frederick v.
Devol, 15 Ind. 357; Walker v. Schindel,
58 Md. 360 See also Mitchel v. Freedley,
Io Barr (Pa.), 198.

Where purchase-money mortgagees verbally agreed with the grantee of the mortgagor that on payment to them of a sum sufficient to entitle the grantor to a conveyance he might remove the plant of a marine railway on the premises, it was held that the agreement was binding. Tyson v. Post (N. Y.), 15 N. E. Rep. 316.

they should by any arrangement between the owners become chattels." Ford v. Cobb, 20 N. Y. 344 See also Fortman v. Goepper, 14 Ohio St. 558.

1. Pugh v. Arton, 8 Eq. Cas. (L. R.) 626; Lyde v. Russell, 1 B. & Ad. 394; Penton v. Robart, 2 East, 88; Weeton v. Woodcock, 7 M. & W. 14; Minshall v. Lloyd, 2 M. & W., 460; Lee v. Risden, 7 Taunt. 188; Heap v. Barton, 12 C. B. 274; Hayes v. N. Y. Min. Co., 2 Colo. 273; Griffin v. Ransdell, 71 Ind. 440; Dostal v. McCaddon, 35 Iowa, 318; Davis v. Buffum, 51 Me. 160; Dingley v. Buffum, 57 Me. 381; Mason v. Fenn, 13 Ill. 525; Kuhlmann v. Meier, 7 Mo. Ap. 260; Powell v. McAshaw, 28 Mo. 70; State v. Elliot, 11 N. H. 540; Torrey v. Burnett, 38 N. J. L. 457; Haflick v. Stober, 11 Ohio St. 482; White v. Arndt, 1 Whart. (Pa.) 91; Preston v. Briggs, 16 Vt. 124; Thomas v. Crout, 5 Bush (Ken.), 37; Josslyn v. McCabe, 46 Wis. 591.

It has been held that when a lease gives the tenant the right to remove his fixtures at the end of the term the law allows him a reasonable time to complete the removal after surrendering possession. Smith v. Park, 31 Minn. 70; Kuhlmann v. Meier, 7 Mo. Ap. 290.

The fixtures must be of such a nature as to be capable of becoming personal property in order to subject them to an agreement of this kind. Denio J., says: "It is conceded that there must necessarily be a limitation to this doctrine, which will exclude from its influence cases where the subject or mode of annexation is such that the attributes of personal property cannot be predicated of the thing in controversy. Thus a house or other building, which from its size or the materials of which it was constructed, or the manner in which it was fixed to the ground, could not be removed without practically destroying it, would not, I conceive, become a mere chattel by means of any agreement which could be made concerning it. So, of the 3. Watriss v. Nat. Bank, 124 Mass. separate materials of a building and 571; Antoni z. Belknap, 102 Mass. 193: things fixed into the wall so as to be es- Loughran 7. Ross, 45 N. Y. 792; Haflick sential to its support, it is impossible that 7. Stober, 11 Ohio St. 482; Sullivan v.

2. Pugh v. Arton, 8 Eq. Cas. (L. R.) 626; Weeton v. Woodcock, 7 M. & W. 14; Whipley v. Dewey, 8 Cal. 36. But it has been held that the forfeiture must be judicially determined. Keogh v. Daniell, 12 Wis. 181.

Where a tenant erected buildings or leased premises, under the terms of the lease allowing him to remove all buildings erected by him during the term, it was held that he could not remove those buildings which he had connected with the buildings on the land prior to his entry, in such a way that the latter would be injured by the removal. Powell v. McAshan, 28 Mo. 70.

the removal of fixtures after the expiration of the term.1 If a tenant go upon the premises to remove fixtures after surrendering the premises to the landlord he will be a trespasser. And where the tenant takes a new lease of the premises to date from the expiration of his old one, without stipulating for the removal of fixtures erected by him during the tenancy just expiring, he cannot remove them at the end of the renewed lease.3 Where the tenant leaves his fixtures on the premises after the expiration of his term, he is presumed to have abandoned them to the landlord.

1

Carberry, 67 Me. 531; Cooper v. Johnson, 143 Mass. 108; Martin v. Roe, 7 E. & B. 236.

Where the tenant has been restrained by an injunction from removing his fixtures, he will have a reasonable time after its dissolution to remove them. Mason v. Fenn, 13 Ill. 525; Bircher v. Parker, 40 Mo. 118.

1. Saint . Pilley, 10 Ex. (L. R.) 137; McCracken v. Hall, 7 Ind. 30; Torrey 7. Burnett, 38 N. J. L. 457; Cromie v. Hoover, 40 Ind. 49-61; Josslyn v. McCabe, 46 Wis. 591.

If the lessor agree to purchase the buildings erected by a tenant, there is an implied promise that the lessee shall have possession of the premises until the fixtures are paid for. Van Rensselaer's Heirs v. Penniman, 6 Wend. (N. Y.) 569.

2. Cromie v. Hoover, 40 Ind. 49; Railroad Co. v. Deal, 90 N. Car. 111; Thomas v. Crout, 5 Bush (Ky.), 37.

3. Watriss v. First Nat. Bank, etc., 124 Mass. 571; Loughran v. Ross, 45 N. Y. 792; Merritt v. Judd, 14 Cal. 60; Jungerman v. Bovee, 19 Cal. 355; Marks v. Ryan, 63 Cal. 107; Hedderich v. Smith, 103 Ind. 203; McIver v. Estabrook, 134 Mass. 550.

Where a tenant from year to year erected and placed certain buildings and fixtures upon the premises, and without surrendering possession of the premises took a written lease "of the premises, with all the rights and appurtenances thereunto appertaining," but without reserving any right in the lease to remove trade fixtures, it was held that the accepting such a lease was equivalent to absolute surrender of possession without removal of his trade fixtures, and an abandonment of them to his landlord. Carlin v. Ritter (Md.), 13 At. Rep. 370. However, it was held that wooden buildings resting upon flat stones lying upon the surface of the ground were not fix

tures.

It has been held that the tenant who accepts a new lease of the premises containing no agreement as to his trade fix

tures does not lose his right to them.
Second Nat. Bank v. Merrill Co. (Wis.),
34 N. W. Rep. 514. In this case the
court says: In the case of grantor and
grantee the usual status of the parties is
that, before the grant is made, the whole
right is in the grantor, and the grantee is
purchasing all his rights; in the case of a
tenant having made and owning fixtures
and machinery of equal or greater value
than the realty on which it stands, and
being in actual possession, and with the
right to remove the same, treating with
his landlord or the grantee of such land-
lord for a new lease, he is not supposed
to treat for a lease of what he already
owns, but for a lease of what the landlord
owns; and if he accepts a lease which
does not in clear terms cover the proper-
ty which he himself owns, it ought not,
as against him and for the purpose of
working a release of his right to the land-
lord, be construed to cover such proper-
ty." And Judge Cooley, in commenting
on the law in reference to this branch of
the subject, says: But why the right
should be lost when the tenant instead of
surrendering possession takes a renewal
of the lease, is not very apparent. There
is certainly no reason of public policy to
sustain such a doctrine; on the contrary,
the reasons which saved to the tenant his
right to the fixtures in the first place are
equally influential to save him on a re-
newal of what was unquestionably his
before. What could possibly be more
absurd than a rule of law which should in
effect say to the tenant who is about to
obtain a renewal: If you will be at the
expense and trouble, and incur the loss
of removing your erections during the
term, and of afterwards bringing them
back again, they shall be yours; otherwise
you will be deemed to abandon them to ./
your landlord'?" Kerr v. Kingsbury, 39
Mich. 150.

4. McCracken v. Hall, 7 Ind. 30; Connor v. Coffin, 22 N. H. 538; Keogh v. Daniell, 12 Wis. 181; Dubois v. Kelley, 10 Barb. (N. Y.) 496. But this presumption can never arise as long as the tenant is

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