death, his heir, and not the personal representative, takes them; nay, the very box or chest which has usually been employed for keeping them so far partakes of this nature as to go with the inheritance in like manner. And there are recent English cases which discuss the respective rights, in this respect, of tenants in fee-simple, for life or in tail, and for terms of years; the result of which is to establish that those who have an absolute estate of freehold may destroy the title-deeds at pleasure, or sell them for old parchment; that freeholders with a qualified estate have but a temporary custody, and cannot injure or part with them; and that tenants for terms of years have no right to deeds which relate to the freehold.2 In the United States this learning is of very little importance; for our registration acts supersede the necessity of accumulating old deeds by way of muniment; and a grantee is generally well satisfied with retaining the original instrument of conveyance to himself, and nothing more, provided the public record shows that his title is a good one.3 The keys of a house, too, are sometimes called "heirlooms," because they go with the house and land to the heir; and a great variety of articles, besides, are enumerated by Blackstone and some other writers under this same head.4 § 99. Heirlooms; Final Observations. But it seems to us that many things classed with heirlooms are more properly to be considered as in the nature of fixtures. For, in speaking strictly of heirlooms, we would naturally be supposed to refer to questions between heir and executor alone; whereas in fixtures the controversy, though quite commonly between them, is often between other parties instead. And again, 106; Wms. Pers. Prop. 5th Eng. ed. 9, 10. 11 Wms. Ex'rs, 683; Went. Off. Ex. 14th ed. 156. 21 Wms. Ex'rs, 9-12, and cases cited; Allwood v. Heywood, Ex. 11 W. R. 291; Ford v. Peering, 1 Ves. Jr. 76; Davies v. Vernon, 6 Q. B. 443. See Wms. Pers. Prop. 10, 11; 1 Washb. Real Prop. b. 1, c. 1. Deeds and writings which relate not to the freehold, but to terms for years and other chattel property; also letters of the decedent, do not go with the inheritance. Bac. Abr. tit. Ex'rs, H. 3. 8 See 4 Kent Com. 456, and notes. 4 See Bouv. Dict. "Heirloom ;" 2 Bl. Com. 427-429, and Chitty's note. the question in heirlooms is largely that of local custom; which question has only a slight bearing upon the doctrine of fixtures. Yet, for want of apt terms at the law, we may well distinguish between things in the nature of fixtures (like keys or title-deeds under some circumstances) and fixtures proper. The former are to be treated as immovables only by construction; and where they cease to be chattels, it is rather because of some logical connection which they bear to the real estate, their fitness, or, as it is said, their use or destination, than on account of qualities inherent in their substance.1 Now, it is otherwise with fixtures proper. These are classed with more especial reference to their physical or material qualities; and to them may be applied the universal principle of law that movables will become immovables, by reason of accession, as when they are united with, or affixed to, or let into the house or land, or are otherwise annexed to that which is immovable.2 We may add, in passing, that the term "heirloom" has now come to be popularly applied, in England, to plate, pictures, or other articles of property which have been assigned by deed of settlement, or bequeathed by will to trustees, in trust, to permit the same to be used and enjoyed by the persons in possession for the time being, under such settlement or will, of the mansion-house in which the articles may be placed. If a will requires articles to be treated as heirlooms, they are not to be applied to the payment of the decedent's debts, unless in an extremity. We have very little occasion to speak of heirlooms at all in the United States under our rules of descent and distribution. § 100. Emblements; Rule as to Chattels Vegetable. - Now as to the law of emblements. The right to emblements is associated with chattels vegetable, whose peculiar charac 1 See P. Voet de Reb. Mob. et Immob. c. 5, n. 1, p. 38. See 1 Washb. Real Prop. 5. 2 P. Voet, ib. n. 4, p. 33; 2 Burge Col. and For. Laws, 6; also next c. 3 See Wms. Pers. Prop. 5th Eng. ed. 13; Harrington v. Harrington, L. R. 3 Ch. 564; Duke of Newcastle v. Lincoln, 12 Ves. 218; 31 Ch. D. 466. Lord Eldon, in Clarke v. Lord Ormonde, 1 Jacob, 114, speaks favorably of permitting certain portions of the effects to be treated as heirlooms, the will so providing. teristics have already received some attention. Fruits, so long as they are hanging on the trees, the crops until they are gathered, and timber trees while they are standing, are things immovable, or real estate, because they are appropriately attached and appendant to the ground. But when the fruit or crops are gathered, or the trees cut down by the owner, as they then cease to be attached to the soil, they become movables or chattels personal.1 Rightful severance, so intended, converts the thing from real to personal property. Yet exceptions are admitted from deference to the mutual intention of the parties concerned. Thus, where trees are planted by the owner or tenant of the soil, to be transplanted and sold, they may be treated constructively at law as personal chattels; and hence a gardener or nurseryman, who occupies premises under a lease, may, at the end of his term, remove and dispose of the trees and shrubs which he has planted in the course of business.2 But ordinarily a farmer who plants fruit-trees cannot sell and remove them against his landlord's consent. And, of course, the exception is to be reasonably applied so as to prevent a malicious tenant from wantonly committing waste; and so as neither to legalize wrongful severance nor to prejudice the rights of interested parties. Again, there are cases where, contrary to the usual rule, growing timber has been considered a chattel as between grantor and grantee. As, for instance, where the owner of lands granted away the trees, and the grantee died before they were felled. Here the law regards the intention of the parties, and considers that, as concerns themselves, a constructive severance has taken place. And the corresponding rule has been applied to the case of a conveyance of lands with a reservation of the trees to the grantor.6 1 2 Burge Col. and For. Laws, 7; 2 Bl. Com. 389; 1 Wms. Ex'rs, 6th Eng. ed. 668; supra, §§ 3, 4. 2 Miller v. Baker, 1 Met. 27; Penton v. Robart, 2 East, 88. 8 Lee v. Risdon, 7 Taunt. 191; Doe v. Gunnis, 4 Taunt. 316. 4 See Watherell v. Howells, 1 Camp. N. P. 722, per Lord Ellenborough. 5 Stukeley v. Butler, Hob. 173; 1 Wms. Ex'rs, 6th Eng. ed. 668. 6 Herlakenden's Case, 4 Co. 63 b. And see supra, § 14. But trees and vegetables, or vines, bushes or shrubs, growing upon land pass presumably by a mortgage of the land as part of the realty, and consequently of the security.1 And nursery trees planted by the owner of the land would pass by a mortgage of the land, though he mortgaged first and planted them afterward.2 For if a reservation were mutually intended, it ought to have been expressed in the mortgage deed. So, too, as between vendor and purchaser, unsevered trees and vegetables or vines, bushes and shrubs, pass as part of the land on which they grow, under a conveyance without express words to the contrary; 3 and one entering into possession of the real estate by title paramount would presumably be preferred to any tenant.1 § 101. Diverse Ownership of Soil and Products; Statute of Frauds applied to Chattels Vegetable. We see, then, that growing trees may sometimes acquire the character and incidents of personal property, in accordance with the mutual intent of the parties, where the owner of the soil sells them to be cut and removed, and the purchaser has no right to occupy the soil for growing or supporting them there. A difficulty here arises under the Statute of Frauds; for that statute requires the sale of interests in lands to be by instrument in writing; notwithstanding which rule, some cases seem to have treated a sale of growing trees as effectual to pass the title in them before they are cut, although not evidenced by deed; as if, indeed, they were chattels within contemplation of the statute itself. Some writers consider that the doctrine may be reconciled by treating a sale of this character, if by parol, 1 Hutchins v. King, 1 Wall. 59. 2 Maples v. Millon, 31 Conn. 598; 1 Washb. Real Prop. 3; Price v. Brayton, 19 Iowa, 309; Adams v. Beadle, 47 Iowa, 439. As to whether the mortgage or sale of a crop not yet sown can pass a title, cf. Hutchinson v. Ford, 9 Bush, 318; Argues v. Wasson, 51 Cal. 620; Apperson v. Moore, 30 Ark. 56. Under a lease, a lien may be expressly reserved on the annual crops, pro duce, &c., of the land. Everman v. § 109. 81 Washb. Real Prop. 104; Tripp v. Hasceig, 20 Mich. 254. 4 Batterman v. Albright, 122 N. Y. 484. 5 Claflin v. Carpenter, 4 Met. 580; Stukeley v. Butler, Hob. 173; 1 Washb. Real Prop. 3; Olmstead v. Niles, 7 N. H. 522. as a license rather than a grant of an interest in real estate; which license, though revocable like other licenses, carries, if executed, the property in such trees as shall have been severed from the freehold. If, therefore, the purchaser has executed the license by which he was permitted to cut the trees, the license becomes irrevocable, and he may enter and remove them; but so long as it remains executory only, no title passes to him.1 There are cases, however, which hold that a sale of such trees is within the Statute of Frauds and should be evidenced by writing. And, even if a sale by parol be regarded as sufficient to vest an interest in the unsevered trees, so far as concerned the parties themselves, and possibly third parties with notice, it cannot avail against the purchaser of the freehold without notice, for this party would take the premises with the trees and crops as incident to the land. But if the owner of the freehold conveys growing trees, as such, by deed, the Statute of Frauds is satisfied, and a constructive severance takes place at once, in accordance with the mutual intention of the parties, so that the vendee may afterwards pass title to them as chattels, without waiting for an actual severance.4 - § 102. Emblements; Title in Chattels Vegetable transmissible by Death. - When the owner of real estate dies, the general rule is that trees, and their fruit and produce, such as apples 11 Washb. Real Prop. 3, and cases cited; Drake v. Wells, 11 Allen, 142; Evans v. Roberts, 5 B. & C. 829; Douglas v. Shumway, 13 Gray, 502; Purner v. Piercy, 40 Md. 212. 2 McGregor v. Brown, 10 N. Y. 117; Carrington v. Roots, 2 M. & W. 248. 8 Wescott v. Delano, 20 Wis. 514; Drake v. Wells, 11 Allen, 144; 1 Washb. Real Prop. 3. 4 Kingsley v. Holbrook, 45 N. H. 319; Warren v. Leland, 2 Barb. 613. In Purner v. Piercy, 40 Md. 212, it is observed that a distinction is sometimes taken in respect of growing crops which are fructus industriales and growing crops which are fructus naturales; whereby the former are admitted to be chattels and not governed by the Statute of Frauds, § 4, whether the property be transferred before or after severance; but otherwise, as to the latter. But the rule preferred is, that in general, if the products of the earth be sold specifically, so as to be separately delivered by the terms of the contract as chattels, the statute does not operate, whether as to fructus industriales or fructus naturales. |