[blocks in formation]

PERSONAL property usually consists of things temporary and moveable, but includes all subjects of property not of a freehold nature, nor descendible to the heirs at law.a

a It includes not only everything moveable and tangible which can be the subject of property, but may include things quasi-moveable, as tenants’ fixtures, and quasi-tangible, as choses in action. Spontaneous productions and fruits of the earth, while ungathered, are considered as belonging to the freehold, and descend to the heir. Com. Dig. tit. Biens, H. 3.; but they are liable to distress for rent and on execution as chattels. See infra, vol. iii. p. 477. 479. The products of annual planting and cultivation, or the fructus industria, as, for instance, a growing crop, are also so far deemed personal property, that they may be distrained, or sold by the owner, or taken on execution as such. Craddock v. Riddlesbarger, 2 Dana's Ken. Rep. 206. 207. Vide infra, vol. iv. p. 467, 468, as to the rule on that subject belween vendor and vendee. Shares in bank and other corporations, with a capital apportioned in shares assignable for public accommodation, but holding real estate, are, nevertheless, personal property, and this is the general doctrine of American law. Hilliard's Abr. vol. 1. 18, and cases in Massachusetts, Rhode Island, North Carolina, and Ohio, are cited to show it. They were so made by statute in Connecticut, in 1818, though in Kentucky they have been adjudged to be real estate, as see Infra, vol. 3. 459. n. And so they were in Connecticut, prior to the statute of that state, as see Welles v. Cowles, 2 Conn. Rep. 567. In England, shares in companies, acting on land exclusively, as railroad, canal and turnpike companies, are held to be real estate. Drybutter v. Bartholomew, 2 P. Wms. 127. Buckeridge v. Ingram, 2 Vesey, Jr., 653. In this last case, the vexed question was elaborately discussed, whether such an interest was real or personal estate. Shares in canals and rail-roads are said to be generally, though not always personal property, and they are in England made personal by several acts of Parliament. Williams on the Principles of real property, int. ch. The

The division of property into real and personal, or moveable and immoveable, is too obvious not to have existed in every system of municipal law. Except, however in the term of prescription, the civil law scarcely made any difference in the regulation of real and personal property. But the jurisprudence of the middle ages was almost entirely occupied with the government of real estates, which were the great source of political power, and the foundation of feudal grandeur. In consequence of this policy, a technical and very artificial *system was erected, upon which the several gra- *341 dations of title to land depended. hattels were rarely an object of notice, either in the treatises or reports of the times, prior to the reign of Henry VI.a They continued in a state of insignificance until the revival of trade and manufactures, the decline of the feudal tenures, and the increase of industry, wealth and refinement, had contributed to fix the affections upon personal property, and to render the acquisition of it an object of growing solicitude. It became, of course, a subject of interesting discussion in the courts of justice; and being less complicated in its tenure, and rising under the in- *342 fluence of a liberal commerce, and more enlightened maxims, it was regulated by principles of greater simplicity, and more accurate justice. By a singular revolution in the history of property and manners, the law of chattels, once so unimportant, has grown into a system, which by its magnitude, overshadows, in a very considerable degree, the learning of real estates.

I. Chattel is a very comprehensive term in our law, and includes every species of property which is not real estate, or a freehold. The most leading division of per

American doctrine is the most convenient; and corporations of the nature alluded to, are generally created with a declaration in the charter, that the shares are to be regarded as personal estate.

a Reeve's History of the English Law, vol. iii. p. 15. 369.

sonal property is into chattels real and chattels personal. Chattels real, are interests annexed to or concerning the realty, as a lease for years of land ; and the duration of the term of the lease is immaterial, provided it be fixed and determinate, and there be a reversion or remainder in fee in some other person. It is only personal estate if it be for a thousand years.b Falling below the character and dignity of a freehold, it is regarded as a chattel interest, and is governed and descendible in the same manner. It does not attend the inheritance, for, in that case, it would partake of the quality of an estate in fee.

There are also, many chattels, which, though they be even of a moveable nature, yet being necessarily attached to the freehold, and contributing to its value and enjoyment, go along with it in the same path of descent, or alienation. This is the case with the deeds, and other papers which constitute the muniments of title to the inheritance;c and also with shelves and family pictures, in a house, and the posts and rails of inclosures.d So, also, it is understood, that pigeons in a pigeon house, deer

in a park, and fish in an artificial pond, go with *343 *the inheritance as heir looms to the heir.e But heir

looms are a class of property distinct from fixtures, and in modern times, for the encouragement of trade and manufactures and as between landlord and tenant, many things are now treated as personal property, which

a Co. Litt. 118. b. 2 Blacks. Com. 386.

b Co. Liit. 46. a. Case of Gay, 5 Mass. Rep. 419. Brewster v. Hill, 1 N. H. Rep. 350.

• Lord Coke said, that charters, or muniments of title, might be entailed. Co. Litt. 20. a. In the Scotch law, a jewel or a picture may be entailed. 2 Bell's Com. 2. Heritable bonds and ground rents follow the freehold. 2 Ibid. 3. The tenant for life is prima facie entitled to retain the custody of the title deeds, and the remainder-man is not entitled to call them out, except for some specific purpose. Shaw v. Shaw, 12 Price': Exch. Rep. 163.

Herlakenden's case, 4 Co. 61. Cooke's case, Moore's Rep. 177. pl. 315. Liford's case, 11 Co. 50. b.

* Co. Litt. 8. a.

seem, in a very considerable degree, to be attached to the freehold. The law of fixtures is in derogation of the original rule of the common law, which subjected every thing affixed to the freehold to the law governing the freehold; and it has grown up into a system of judicial legislation, so as almost to render the right of removal of fixtures a general rule, instead of being an exception. The general rule, which appears to be the result of the cases, is, that things which the tenant has affixed to the freehold, for the purposes of trade or manufactures, may be removed, when the removal is not contrary to any prevailing usage, or does not cause any material injury to the estate, and which can be removed without losing their essential character or value as personal chattels. The character of the property whether personal or real in respect to fixtures, is governed very much by the intention of the owner, and the purposes to which the erection was to be applied. Thus, things set up by a lessee, in relation to his trade, as fats, coppers, tables and partitions, belonging to a soap boiler, may be removed during the term. The tenant may take away chimney pieces, and even wainscot, if put up by himself;c or a cider mill and and press erected by him on the land, d or a pump erected by him, if removable without material injury to the freehold. So, a building resting upon blocks, and not let into the soil, has been held a mere chattel.f A post wind

Trappes v. Harter, 3 Tyrwhitt's Rep. 603. Cook v. Ch. T. Comp. 1 Denio, 92.

b Poole's case, 1 Salk. Rep. 368. Kettles and boilers in a tannery, and stills in a distillery, are not fixtures, but personal property: 1 Missouri Rep. 508. 3 Ibid. 207. On the other hand, iron salt-pans in salt-works erected by the tenant, and the pans resting on brick-work, not allowed to be removed as being parcel of the works to be left in good repair. Mangfield v. Blackburne, 6 Bing. N. C. 426. c Ex parte Quincy, 1 tk. Rep. 477.

Holmes v. Tremper, 20 Johns. Rep. 29. • Grymes v. Boweren, 4 Moore f. Payne, 143. 6 Bing Rep. 437. i Naylor v. Collinge, 1 Taunt. Rep. 21.

mill, erected by the tenant,a and machinery for spinning, and carding, though nailed to the floor, and copper stills,

and distillery apparatus, and potash kettles, though *344 *fixed, or set on arches,c are held to be personal

property. On the other hand, iron stoves, fixed to the brick work of the chimneys of a house, have been adjudged to pass with the house, as part of the freehold, in a case where the house was set off on execution to a creditor.d But in another case in the same court, between mortgagor and mortgagee, the possessor, on the termination of that relation, was allowed to take down and carry away buildings erected by him on the land, and standing on posts, and not so connected with the soil but that they could be removed without prejudice to it.e The tenant may also remove articles put up at his own expense for ornament or domestic convenience, unless they be permanent additions to the estate, and so united to the house as materially to impair it, if removed, and when the revoval would amount to a waste. The right of removal will depend upon the mode of annexation of the article, and the effect which the removal would have upon the premises.f

a The King v. Londonthorpe, 6 Term. Rep. 377. See, also, The King v. Inhabitants of Otley, 1 B. f Adolph. 161. In Maine, this notion of moveable fixtures was carried so far as to allow an action of trover for a sawmill built by A. on the land of B., with his consent, when occupation was refused. Russell v. Richards, 1 Fairfield's Rep. 429. Tapley v. Smith, 18 Maine Rep. 12. S. P. So, in England, a wooden barn erected on a foundation of brick and stone, is not a fixture, and may be removed by the tenant, and trover will lie for it. Wansbrough v. Moton, 4 Adolp. f Ellis, 884.

b Creson v. Stout, 17 Johns. Rep. 116. Tobias v. Frances, 3 Vermont Rep. 425. Taffe v. Warnick, 3 Blackf. Ind. Rep. 111.

c Reynolds v. Shutter, 5 Cowen's Rep. 323. Raymond v. White, 7 Ibid, 318. Whetherbeo v. Foster, 5 Vermont Rep. 136.

a Goddard v. Chase, 7 Mass. Rep. 432.

• Taylor v. Townsend, 8 Mass. Rep 411. But fixtures erected by the mortgagor are annexed to the freehold, and cannot be removed until the debt be paid. Butler v. Page, 7 Metcalf, 40.

Buskland v. Butterfield, 2 Brod. f Bing. 54. In Burge's Com. on

« ForrigeFortsett »