With respect to ornamental fixtures, there are some cases in which the executor has been permitted to remove even these against the heir. But on the whole, as observed by a learned writer, it would seem that the law is by no means clearly settled respecting the right of the executor of tenant in fee to fixtures set up for ornament or domestic convenience.2

Secondly, we have already observed,3 that the heir is more favored in law than the remainderman or reversioner, and, therefore, all cases in which an executor or administrator of the tenant in fee would be entitled to *fixtures as against the heir, [*427] will apply, à fortiori, to support the claim of the representatives of tenant for life, or in tail, against the remainderman or reversioner. The personal representatives, therefore, in the latter case, seem clearly entitled to fixtures erected for purposes of trade, as against the party in remainder or reversion.*

In the third class of cases above mentioned, that, viz., between landlord and tenant, the general rule, that whatever has once been annexed to the freehold becomes a part of it, and cannot afterwards be removed, except by or with the consent of him who is entitled to the inheritance, must be qualified more largely than in the preceding classes: thus, the tenant may take away during the continuance of his term, or at the end of it, although not after he has quitted possession, such fixtures as he has himself put upon the

5

1 See Harvey v. Harvey, Stra. 1141; Squier v. Mayer, 2 Freem. 240; Beck v. Rebow, 1 P. Wms. 94.

21 Williams Executors, 6th ed., 697.

3 Ante, p. 418.

Lawton v. Lawton, 3 Atk. 13; Lord Dudley v. Lord Ward, Amb. 113. Co. Litt. 53 a; per Kindersley, V.-C., Gibson v. Hammersmith R. C., 32 L. J. Chanc. 340 et seq. Trover does not lie for fixtures until after severance; Dumergue v. Rumsey, 2 H. & C. 777, 790 ; Minshall v. Lloyd, 2 M. & W. 450; recognised, Mackintosh v. Trotter, 3 Id. 184-186; Roffey v. Henderson, 17 Q. B. 574, 586 (79 E. C. L. R.); London Loan, &c., Co. v. Drake, 6 C. B. N. S. 798, 811 (95 E. C. L. R.). In Wilde v. Waters, 16 C. B. 651 (81 E. C. L. R.), Maule, J., delivering the judgment of the Court, observes, "Generally speaking, no doubt, fixtures are part of the freehold, and are not such goods and chattels as can be made the subject of an action of trover. But there are various exceptions to this rule, in respect of things which are set up for ornament or for the purpose of trade, or for other particular purposes. As to these, there are many distinctions, some of which are nice and intricate." See also Clarke v. Holford, 2 C. & K. 540 (47 E. C. L. R.).

demised premises, either for the purposes of trade, or for the ornament or furniture of his house; but here a distinction must be observed between erections for the purposes of trade annexed to the freehold, and those which are for purposes [*428] merely agricultural. With respect to the former, the exception. engrafted upon the general rule is of almost as high antiquity as the rule itself, being founded upon principles of public policy, and originating in a desire to encourage trade and manufactures. With respect to the latter class, however, it has been expressly decided that to such cases the general rule must (irrespective of the stat. 14 & 15 Vict. c. 25) be applied.

In the leading case on this subject, it was held that a tenant in agriculture, who erected at his own expense, and for the necessary and convenient occupation of his farm, a beast-house, and carpenter's shop, &c., which buildings were of brick and mortar, and tiled, and let into the ground, could not legally remove the same even during his term, although by so doing he would leave the premises in the same state as when he entered; and a distinction was here taken between annexations to the freehold for the purposes of trade, and those made for the purposes of agriculture and for better enjoying the immediate profits of the land. Where, indeed, a super

1 Such as stoves, grates, ornamental chimney-pieces, wainscots fastened with screws, coppers, a pump very slightly affixed to the freehold, and various other articles; per Erle, J., and Crowder, J., Bishop v. Elliott, 11 Exch. 115; Grimes v. Boweren, 6 Bing. 437 (19 E. C. L. R.); and per Tindal, C. J., Id. 439, 440; Horn v. Baker, 9 East 215, 238. In Buckland v. Butterfield, 2 B. & B. 54 (6 E. C. L. R.), which is another important decision on this subject, it was held, that a conservatory erected on a brick foundation, attached to a dwelling-house, and communicating with it by windows, and by a flue passing into the parlor chimney, becomes part of the freehold, and cannot be removed by the tenant or his assignees. See West v. Blakeway, 2 M. & Gr. 729 (40 E. C. L. R.); Burt v. Haslett, 18 C. B. 162 (86 E. C. L. R.); s. c., Id. 893.

See also Powell, app., Farmer, resp., 18 C. B. N. S. 168, 178 (114 E. C. L. R.); Powell, app., Boraston, resp. Id. 175.

Per Lord Kenyon, C. J., Penton v. Robart, 2 East 90; judgm., Earl of Mansfield v. Blackburne, 3 Bing. N. C. 438 (32 E. C. L. R.). A nurseryman may, at the end of his term, remove trees planted for the purpose of sale; Amos & Fer., Fixtures, 2d ed., 68.

3 Elwes v. Maw, 3 East 38. cases there cited.

See Smith v. Render, 27 L. J. Ex. 83; and

[*429]

incumbent *shed is erected as a mere accessory to a personal chattel, as an engine, it may, as coming within the definition of a trade fixture, be removed; but where it is accessory to the realty it can in no case be removed.1

Where the tenant of a farm or land, with the consent in writing of his landlord, erects at his own cost farm-buildings, engines, or machinery, either for agricultural purposes, or for the purposes of trade and agriculture, they will now be the property of the tenant, and removable by him, subject to the provisions of the statute below cited, although built in or permanently fixed to the soil, or the landlord may purchase them at his election.

It has been stated, that the right of removal, where it exists, should be exercised during the continuance of the term; for, if the tenant forbears to exercise it within that period, or during such further period as he holds the premises under a right still to consider himself as tenant, or after the expiration of the term, but whilst he remains in possession of the premises—though the precise state of the law upon this point is somewhat doubtful3-the tenant will be presumed to have voluntarily relinquished the claim in favor of his landlord. It is also important to remark, that the legal right of the tenant to remove fixtures is capable of being either extended or controlled by the express agreement of the parties; and [*430] *the ordinary right of the tenant to disannex tenants' fixtures during the term may thus be renounced by him; it is, in fact, very usual to introduce into a lease a covenant for this purpose, either specifying what fixtures shall be removable by the tenant, or stipulating that he will, at the end of the term, deliver up all fixtures annexed during its continuance to the landlord's

1 Whitehead v. Bennett, 27 L. J. Ch. 474.

2 14 & 15 Vict. c. 25, s. 3.

3 Judgm., Leader v. Homewood, 5 C. B. N. S. 553 (94 E. C. L. R.).

See per Jervis, C. J., Heap v. Barton, 12 C. B. 280; per Patteson, J., Roffey v. Henderson, 17 Q, B. 586 (79 E. C. L. R.); per Parke, B., 3 M. & W. 186; Leader v. Homewood, 5 C. B. N. S. 546 (94 E. C. L. R.); per Williams, J., Stransfeld v. Mayor, &c., of Portsmouth, 4 C. B. N. S. 128 (93 E. C. L. R.); and in London Loan, &c., Co. v. Drake, 6 Id. 810; Amos & Fer., Fixtures 87; cited by Lord Tenterden, C. J., Lyde v. Russell, 1 B. & Ad. 395 (20 E. C. L. R.); Weeton v. Woodcock, 7 M. & W. 14, 19; Lee v. Risdon, 7 Taunt. 188 (2 E. C. L. R.).

6 Dumergue v. Rumsey, 2 H. & C. 777.

use. Where a lessee mortgaged tenant's fixtures, and afterwards surrendered his lease to the lessor, who granted a fresh lease to a third party, the mortgagees were held entitled to enter and sever the fixtures.2

In an action of trespass for breaking and entering the plaintiff's apartment, and for taking a certain brass plate from the outer door of the dwelling-house, the defendant pleaded, first, not guilty; and, secondly, as to removing the brass plate, that the plaintiff was not possessed thereof; no evidence was given as to whether it was or was not a fixture, nor was any question as to this point raised at the trial. The jury assessed the damages separately, for the breaking and entering, and for the removal of the door-plate; and the Court held, that, after verdict, it must be assumed that the said plate was not a fixture, and that the defendant, having treated it as an independent chattel, and thereby thrown the plaintiff off his guard, could not, the verdict being against him, turn round and treat the matter differently;3 for this would *have been "blowing hot and cold," and therefore inadmissible, as opposed to a principle already mentioned.*

[*431]

It is also worthy of notice, that the right of property in fixtures may be modified by proof of a special usage prevailing in the particular neighborhood:" and it may, also, as in case of landlord and tenant, be modified by evidence of the intention of the parties; ex. gr., a chattel placed by the owner upon the freehold of another, but severable from it without injury thereto, does not necessarily become part of the freehold, it is matter of evidence whether by agreement it does not remain the property of the orignal owner.

'See Bishop v. Elliott, 11 Exch. 113; Stansfield v. Mayor, &c., of Portsmouth, 4 C. B. N. S. 120 (93 E. C. L. R.); Earl of Mansfield v. Blackburne, 3 Bing. N. C. 438 (32 E. C. L. R.); Foley v. Addenbrooke, 13 M. & W. 174; Sleddon v. Cruikshank, 16 M. & W. 71; Heap v. Barton, 12 C. B. 274 (74 E. C. L. R.), citing Penton v. Robart, 2 East 88.

2 London Loan, &c., Co. v. Drake, 6 C. B. N. S. 798 (95 E. C. L. R.).

3 Lane v. Dixon, 3 C. B. 776 (54 E. C. L. R.); cited Huddert v. Rigby, L. R. 5 Q. B. 139.

Ante, p. 169.

Vin. Abr., "Executors," U. 74. See Davis v. Jones, 2 B. & Ald. 165, 168.

• Wood v. Hewett, 8 Q. B. 913 (55 E. C. L. R.), followed in Lancaster v. Eve, 5 C. B. N. S. 717, 722, 727, 728 (94 E. C. L. R.), where Williams, J.,

In concluding these remarks concerning fixtures, we may observe that the uncertainty of the law on this subject results necessarily from the fact, that each case involving a question as to the right to fixtures is professedly and necessarily, in a great measure, decided according to its own particular circumstances; and a perusal of the preceding pages will sufficiently show that the maxim Quicquid plantatur solo, solo cedit is held up by our law only to be departed from on account of the acknowledged ill effects which would ensue from too strict an application of it.

[*432] *DOMUS SUA CUIQUE EST TUTISSIMUM REFUGIUM.

(5 Rep. 92.)

Every man's house is his castle.1

In a leading case which well exemplifies the application of the above maxim, the facts may be shortly stated thus:—the defendant and one B. were joint tenants of a house in London. B. acknowledged a recognisance in the nature of a statute staple to the plaintiff, and, being possessed of certain goods in the said house, died, whereupon the house in which the goods remained became vested in the defendant by survivorship. Plaintiff sued out process of extent on the statute to the sheriffs of London; and, on the sheriff's having returned the conusor dead, he had another writ to extend all the lands which B. had at the time of acknowledging the statute, or at any time after, and all the goods which he had at the day of his death. This writ plaintiff delivered to the sheriffs, and told them that divers goods belonging to B. at the time of his death were in the defendant's house; upon which the sheriffs charged the jury to make inquiry according to the said writ, and the sheriffs and jury observes, "No doubt the maxim Quicquid plantatur solo, solo cedit is well established; the only question is, what is meant by it? It is clear that the mere putting a chattel into the soil by another cannot alter the ownership of the chattel. To apply the maxim, there must be such a fixing to the soil as reasonably to lead to the inference that it was intended to be incorporated with the soil."

"In connection with what has been said supra, respecting the right to fixtures as between landlord and tenant, may be consulted the cases cited ante, p. 425, which concern mortgagor and mortgagee.

1 Nemo de doma suâ extrahi debet, D. 50. 17. 103.