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Questions respecting the right to what are ordinarily called fixtures, or articles of a personal nature affixed to *the freehold,a principally arise between *345 three classes of persons: 1. Between heir and executor; and there the rule obtains with the most rigour in favour of the inheritance, and against the right to consider as a personal chattel any thing which has been affixed to the freehold.b 2. Between the executor of the

Colonial and Foreign Laws, vol. ii. p. 6—31, the rules respecting fixture-. not only in the English law but in the civil law and the codes of other nations, are collected. See, also, Treatise on Fixtures, by Amos dt Ferartl. ch. 2. sec. 3,4. This valuable treatise has collected the numerous cased on the subject of fixtures, and traced and stated the subtle distinctions arising therein, with clearness and accuracy. Under the head of ornamental fixtures, hangings, tapestry, and pier-glasses, marble or other ornamental chimney pieces, marble slabs, window blinds, and wainscot* fastened with screws, have been included; and, under the head of articles put up by the tenant, for domestic use and convenience, and allowed to be removed during the term, are enumerated grates, stoves, iron backs to chimneys, fixed tables, furnaces, coppers, coffee-mills, malt-mills, jacks, cupboards, iron ovens, &c. Ibid. In the case of Blood v. Richardson, in the New-York superior court of common pleas, in 1831, the tenant was held to be entitled to remove a grate and other fixtures put up by him for his own accommodation; and in Gaffield v. Hapgood, 17 Pick. Rep. 19t, a fire frame fixed in the fire-place was held to be a fixture removeable by the tenant during the term. The law of fixtures in its application to the relation of landlord and tenant, partakes of the liberal and commercial spirit of the times.

• It was said by the barons, in Sheen v. Rickie, Best's Exch. Rep. East. Term, 1839, that fixtures do not necessarily mean things affixed to the freehold. It only means something fixed to another, and which the tenant has the power of removing. But I apprehend that the ordinary meaning is the appropriate and legal meaning, and which is things fixed in a greater or less degree to the realty. It is clearly settled, said Baron Parke in Mixshall v. Lloyd, 2 Mecson W. 459, that every thing substantially and permanently affixed to the soil, is in law a fixture. The principle thing must not be destroyed by the accessary, nor a serious injury inflicted to some important building, unless the building itself be only an accessary to the fixture, as an engine house, to cover it. The principle seems to be that the fixture must be adapted to the enjoyment of the realty, and more or less annexed to it.

b The New-York Revised Statutes, vol. ii. p. 83. sec. 6, 7, 8, declare, that things annexed to the freehold, or to any building, for the purpose of tenant for life, and the remainder-man or reversioner; and here the right to fixtures is considered more favourably for the executors. 3. Between landlord and tenant; and here the claim to have articles considered as personal property, is received with the greatest latitude and indulgence. 4. There is an exception of a broader extent in respect to fixtures erected for the purposes of trade, and the origin of it may be traced back to the dawnings of modern art and science.11 Lord Ellenborough, in Elwes v. Maiv,b went through all the cases from the time of the Year Books, and the court concluded, that there was a distinction between annexations to the freehold for the purposes of trade or manufacture, and those made for the purposes of agriculture; and the right of the tenant to remove was strong in the one case, and not in the other. It was held, that an agricultural tenant who had erected, for the convenient occupation of his farm, several buildings, was not entitled to remove them. Had the erections been made for the benefit of trade or manufactures, there would seem to have been no doubt of the right of removal. The strict rule as to fixtures, that applies *346 between heir and executor, ^applies equally as between vendor and vendee, and mortgagor and mortgagee; and growing crops, manure lying upon the landi and fixtures erected by the vendor for the purpose of

trade or manufacture, and not fixed into the wall of a house, so as to be essential to its support, go to the executor as assets; and that all other things annexed to the freehold, descend to the heir or devisee. The chancellor, in House v. House, 10 Paige, 163, supposed the legislature here intended to put the executor or administrator upon the same footing with a tenant as to the right to fixtures.

* 20 Hen. VII. 13. a. and b. pi. 24. The exception, in that case, was allowed in favor of a baker and a dyer affixing furnaces or vats, or vessels pur occupier son occupations. But the exception in favour of such trades was almost too liberal for the age; and we find, in the following year, 21 Hen. VII. 27, it was narrowed to things fixed to the ground, and not to the walls of the principal building.

> 3 East's Rep. 38. The notes attached to this case in Smith's leading cases in Law Library, N. S. vol. 28, are valuable.

trade and manufactures, as potash kettles for manufacturing ashes, pass to the vendee of the land.* Fixtures go along with the premises to a lessee, if no reservation be made at the time of the contract ;b and the tenant must remove fixtures put up by him before he quits the possession on the expiration of his lease.0 If not removed during the term, they become the property of the landlord."

• Spencer, Cb. J., in Holmes v. Tremper, 20 Johns. Rep. 30. Hare v. Horton, 2 Neville <J- Manning, 428. Miller v. Plumb, G Cowen's Rep. 665. Kirwan v. Latour, 1 Harr. $ Johns. 289. Kittridge v. Woods, 3 JV. H. Rep. 503. . Despatch line of Packets v. Bellamy, 12 N. H. Rep. 205. Oves v. Oglesby, 7 "Watts, 106. Union Bank v. Emerson, 15 Mass. Rep. 159. Though fructus industrials pass from the intestate to his personal representatives, yet under a devise or conveyance of the land they pass to the devisee or vendee. The main mill wheel and gearing of a factory, and necessary to its operation, are held to be fixtures and real estate in favour of the right of dower, as against the heir. Powell v. Monson and Brimfield Manufacturing Company, 3 Mason's Rep. 459. Such machinery will also pass to the vendee as against the vendor. Farrar v. Stackpole, 6 Greenleaf's Rep. 154. So, manufacturing machinery and fixtures will pass to a mortgagee, as part and parcel of the inheritance, in like manner as they pass to a vendee. Lord Hardwicke, in Ryall v. Rolle, 1 Alt. Rep. 175. Union Bank v. Emerson, 15 Mass. Rep. 159. Amos rfj- Ferard on Fixtures, 189. 191. Voorhis v. Freeman, 2 Watts $ Serg. 116. Despatch line of Packets v. Bellamy, 12 N. H. Rep. 205. They are parcel of the inheritance. Ferrant v. Thompson, 5 B. $ Aid. 826. But in Swift v. Thompson, 9 Conn. Rep. 63, machinery in a cotton factory attached to the building, so far as to keep the machinery steady, and which could be removed without injury to the building or the machinery, was held to be personal property, as respects creditors and purchasers. The case of Gale v. Ward, 14 Mass. Rep. 352, went also to the same point. Fixtures made by a mortgagor after the mortgage, become part of4the realty as between him and the mortgagee, and cannot be removed. It might be otherwise in the case of landlord and tenant. The mortgagor makes such improvements as owner for the permanent benefit of the estate. Winslow v. Merchants' Ins. Co., 4 Metcalf R. 306.

b Colegrave v. Dios Santos, 2 Barnw. 4/ Cress. 76.

• Gibbs, Ch. X, in Lee v. Risdon, 7 Taunt. Rep. 183. Ex parte Quincy, 1 Atk. Rep. 477. 2 Barnw. <j- Cress. supra. Poole's case, 1 Salk. Rep. 368. Penton v. Robart, 2 East's Rep. 88. White v. Arndt, 1 Wharton, 91. 2 Meeson $ W. 460. S. P.

<i Lyde v. Russel, 1 B. dj- Adolphus, 394. The French law coincides

Vol. II. 33

It has been strongly questioned by high authority,' whether erections for agricultural purposes ought not, in this country, to receive the same protection in favour of the tenant as those fixtures made for the purposes of trade, manufactures, or domestic convenience. They may be necessary for the beneficial enjoyment of the estate, and the protection of its produce; and public policy and the interest of the owner of the soil, are equally promoted by encouragement given to the tenant to cultivate and improve the estate. In Whiting *347 v. Braston,b the agricultural tenant received *a liberal application of the exception in favour of the' removal of fixtures. He was allowed to remove from the freehold all such improvements as were made by him, the removal of which would not injure the premises or put them in a worse plight than they were in when he took possession. The case of Holmes v. Tremper,0 may also be referred to, as containing a just and enlarged view of the subject; and the tenant was allowed to remove a cider mill and press erected for his own use. But the same policy of encouraging and protecting agricultural improvements, will not permit the outgoing tenant to remove the manure which has accumulated upon a farm during the course of his term.d

with the English in respect to fixtures made for embellishment. The tenant may remove them, provided they can be removed without being destroyed, and without deteriorating the premises. Lois dee Bailmens, par Le Page, tom. ii. p. 190. 205.

» Van Ness v. Pacard, 2 Peters' V. S. Rep. 137.

b 4 Pick. Rep- 310.

» 20 Johris. Rep. 29.

< Lassell v. Reed, 5 Oreenlsaf's Rep. 222. Middlebrook v. Corwin, 15 Wendell, 169. Daniels v. Pond, 21 Pick. 367. It would seem to be the law in England for the outgoing tenant to sell or take away the manure. Roberts v. Barker, 1 Crompt. $ Meeson, 809. Gibbone on Dilapidations, 76; but a special usage sometimes obliges the oflgoing tenant to leave the manure upon the land. In North Carolina the outgoing tenant, when there is no custom or covenant to the contrary, has a right to the manure

The civil law was much more natural, and much less complicated in the discrimination of things, than the common law. It divided them into the obvious and universal distinction of things moveable and immoveable or things tangible and intangible. The moveable goods of the civil law were, strictly speaking, the chattels personal of the common law. Whatever was fixed to the freehold perpetui usus causa was justly deemed a part of the res immobiles of the civil law.»

II. Property in chattels personal is either absolute or qualified.

Absolute property denotes a full and complete title and dominion over it; but qualified property in chattels is an exception to the general right, and means a temporary or special interest, liable to be totally divested on the happening of some particular event.

A qualified property in chattels may subsist by reason of the nature of the thing or chattel possessed. The elements of air, light and water, are the subjects of qualified property by occupancy; and Justinian, in his Insti

made by him on the farm, provided he takes it away before he removes Smithwick v. Ellison, 2 Iredell's Rep. 326.

In the case of Walker v. Sherman, 20 Wendell, 636, Mr. Justice Cowen gave an elaborate examination of the English and American authorities on the subject of fixtures, and the decision in the case was, that machinery in a woollen factory, being moveable, and not in any manner affixed or fastened to the building or land, and yet material to the performance of the factory in certain departments of iis work, was personal property, as between tenants in common, and owners of the fee. The question was decided on the same principle as if it had arisen between grantor and grantee. The learned judge considered that the aucient distinction between actual annexation and total disconnexion, waR the most certain and practical, and he collected from the cases, as far as their subtlety and inconsistency would admit of any general conclusion, that nothing of a nature personal in itself, would pass as a fixture, unless it be in some way habitually or permanently attached or fixed to the freehold. There are likewise constructive fixtures which, in ordinary understanding, make part and parcel of the land or building. Such are rails on a fence, stones in a wall fence, and Venetian blinds, and locks and keys to a house, &c.

Taylor's Elcm. of the Cisil Law, 475.

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