§ 123. Right to remove Fixtures as between Vendor and Vendee. Questions concerning the right to fixtures come up very frequently in these days between vendor and vendee, mortgagor and mortgagee, and personal representative and devisee. The rule is a general one, that, upon a sale of the freehold, any and all fixtures attached to it will pass as between vendor and vendee, unless there is some express provision to the contrary. For here the presumption is strongly against the vendor, who should expressly reserve from sale such articles set up in the freehold as he wishes to remove for himself; since a vendee is not asked to make a purchase of lands blindfold. But in a purchase of premises used for business purposes, express reservation as to fixtures will protect the right to remove them.2 And mutual intention of the parties may conclude any controversy of

this kind.

§ 124. Right to remove Fixtures as between Mortgagor and Mortgagee. As to mortgages, the prevailing rule is, that they pass a similar right to fixtures as in the sale of the land; in either of which cases there is a conveyance exe

lessee, pending negotiations for a lease which afterwards fell through, may be removed by him. 30 Minn. 56.

12 Smith Lead. Cas. 247; Hitchman v. Walton, 4 M. & W. 409; 2 Kent Com. 441; 1 Washb. Real Prop. 7; Farrar v. Stackpole, 6 Greenl. 157; Walker v. Sherman, 20 Wend. 636; Kennard v. Brough, 64 Ind. 23; Schemmer v. North, 32 Mo. 206; Lapham v. Norton, 71 Me. 83; Connor v. Squiers, 50 Vt. 680. A factory being sold, its necessary machinery passes too. Green v. Phillips, 26 Gratt. 752. See Colegrave v. Dios Santos, 2 B. & C. 76, per Bayley, J.; Farrant v. Thompson, 5 B. & A. 826; Wood v. Whelen, 93 Ill. 153. As to cotton-gin, &c., between vendor and vendee, see Junkin v. Dupree, 44 Tex. 500; Smith v. Odom, 63 Ga. 499. For a case where an estate for years was, by a conveyance to the lessee, as provided in the

lease, merged in the fee, see Globe Marble Mills Co. v. Quinn, 76 N. Y. 23. Machinery put up for a temporary purpose by another, and easily removable, held not to pass by a conveyance of the land, but to remain a chattel. Bewick v. Fletcher, 41 Mich. 625. So with shelving and counters long used in a store. 82 Iowa, 29. Or platform weighing scales in front of the store. 55 Minn. 91.

That a purchaser who is merely in possession under an agreement for a deed should take heed about annexing fixtures, see Moore v. Vallentine, 77 N. C. 188; Towne v. Fiske, 127 Mass. 125; Lapham v. Norton, 71 Me. 83; Westgate v. Wixon, 128 Mass. 304.

2 Kirch v. Davies, 55 Wis. 287. As to conditions of sale, whereby the title has not yet passed, see 5 Del. 192; 90 Mich. 425.

cuted by the owner of the soil which ought to state excepted articles. Hence trade fixtures which were upon the freehold at the time of the mortgage pass with the land to the mortagee. And even those put up afterwards have been brought within the same rule. At the same time the language of the conveyance, whether absolute or in mortgage, may be such, that upon its true construction the vendor or mortgagor will be allowed to remove, mortgage, or dispose of articles set up for trade or other purposes. And he may treat as chattels things placed upon the premises which are clearly such and things which there is no reason to suppose come within the fair intendment of the real-estate mortgage.5 Upon the whole, evident intention of the parties is regarded with an inclination to favor a bona fide mortgagee of the land in cases of doubtful intention. But a mortgage of fixtures already on the premises as personal property, while perhaps operating as a constructive severance as between the parties thereto, is held to be of no force against a subsequent purchaser of the realty without notice of its existence; and such a purchaser will take the land free from the incumbrance created by such chattel mortgage.

1 Gawan v. Barclay, 4 W. R. 81; Longstaff v. Meagoe, 2 Ad. & E. 167; Walmsley v. Milne, 7 C. B. N. s. 115; Amos & Fer. Fixtures, 219. But see Ex parte Quincy, 1 Atk. 477.

2 Climie v. Wood, L. R. 3 Ex. 257, and cases cited; Law Rep. 4 Ex. 328. See Mather v. Fraser, 2 Kay & J. 536; Longbottom v. Berry, L. R. 5 Q. B. 123.

3 Cullwick v. Swindell, L. R. 3 Eq. 249; 44 Iowa, 57; 38 Mich. 30; Lynde v. Rowe, 12 Allen, 100; 4 Met. 306; Wood v. Whelen, 93 Ill. 153; State Savings Bank v. Kercheval, 65 Mo. 682; McFadden v. Allen, 134 N. Y. 489. But see Hill v. Sewald, 53 Penn. St. 271; 19 Penn. St. 71. Cf. 42 N. J. Eq. 218, 700. Appliances of a permanent character in a soap and candle factory are presumed to pass under a mortgage of the premises. 80 Cal. 245. See 34 Fla. 509.

4 Waterfall v. Penistone, 6 E. & B. 866. See, further, 1 Washb. Real Prop. 7, 542, and cases cited; Walmsley v. Milne, 7 C. B. N. s. 115; Burnside v. Turchell, 43 N. H. 390; Crane v. Brigham, 3 Stockt. Ch. 30.

5 McConnell v. Blood, 123 Mass. 47; Wheeler v. Bedell, 40 Mich. 693; 16 Hun, 239; 26 N. J. Eq. 563.

6 Bringholff v. Munzenmaier, 20 Iowa, 513; 65 N. H. 242; 86 Me. 541.

In the case of a sale of realty with a mortgage back by way of giving the vendor a lien for deferred payments, the judicial disposition appears to be to favor annexations as existing for the vendor's better security, Morris's Appeal, 88 Penn. St. 368; Central Branch R. v. Fritz, 20 Kan. 430; but it is highly proper in all such transactions to make both a real and a chattel mortgage by way of full secu

§ 124 a. Secret Arrangements: Subsequent Parties without Notice. As to subsequent purchasers or mortgagees of land to which another's chattels have been annexed, the rule is that seasonable notice of arrangements which had previously existed for regarding such chattels as removable fixtures, affect them accordingly; for the incumbrance has here entered into their own arrangements. But without seasonable or prior notice such bona fide parties for value are protected; and no private arrangement between the owner of such realty and one who has permitted his chattel to be so annexed as to appear physically a part of it, that the thing shall remain the seller's personal property until paid for, can prej

rity for fixtures. See Zeller v. Adams, 30 N. J. Eq. 421; 80 Me. 491.

Title to the realty and fixtures may become united in one person by a purchase subject to an existing mortgage. Jones v. Chair Co., 38 Mich. 92.

Among articles which have been lately regarded as fixtures belonging to the realty for the mortgagee's security, unless reserved in the mortgage, are the following: platform scales fastened to sills, &c., Arnold v. Crowder, 81 Ill. 56; machinery, apparatus, &c., of a mortgaged brickyard and saw-mill, 27 La. Ann. 657; machinery added under an option to purchase not complied with, Hamilton v. Huntley, 78 Ind. 521; a pump planted in the ground and connected to pipes, 77 Cal. 190; the fastened bar of a saloon, 48 Minn. 67. See also Smith v. Blake, 96 Mich. 542. But not an embossing press owned and put in by a lessee of the mortgagor, Pope v. Jackson, 65 Me. 162; nor machinery carefully kept apart as personal property, for the security of the chattel seller or mortgagee, Tifft v. Horton, 53 N. Y. 377; Eaves v. Estes, 10 Kan. 314; nor unfastened casks, hogsheads, fermenting tubs, and a copper cooler, used in a brewery. Wolford v. Baxter,

33 Minn. 12. And see 40 N. J. Eq. 501; 140 Mass. 21, 416; 162 Penn. St. 435. A mortgage of a machine shop covers machines, pulleys, and shafting, bolted or screwed to the building or to blocks bolted to the building; also essential parts of the machinery, although they can be detached therefrom without injury. But it does not cover machines which are not fastened to the floor, but are supported by their own weight; nor machines which are fastened to benches, although run from the shafting; nor vises screwed to benches, although the benches are nailed to the building. Pierce v. George, 108 Mass. 78. And see Ottumwa Co. v. Hawley, 44 Iowa, 57. Upon the usual principle as between mortgagor and mortgagee, it is held that an engine and boiler, put up after a mortgage of the premises was given, constitute part of the mortgage security, and cannot be afterwards removed by the mortgagor or his assigns, to the mortgagee's injury. Roberts v. Dauphin Deposit Bank, 19 Penn. St. 71. As to an elevator, see 78 Iowa, 279.

1 Walker v. Schindel, 58 Md. 360; Ingersoll v. Barnes, 47 Mich. 104; 86 Me. 394.

udice the subsequent purchaser or mortgagee of the premises unaware of it.1 But purchasers at a judicial sale stand in the stead of the judgment debtors and become affected by intervening rights without notice at all.2 What appears physically to be personal property, however, may well be protected to the true owner, and a subsequent mortgagee or purchaser of the land has notice from that very circumstance.3

Manifestly, in many cases it may depend altogether upon the agreement or the special relation of the parties to the annexation whether or not a chattel detachable from the realty has become an immovable fixture. But while they themselves become estopped in such a case to deny that the property was what they agreed it should be, third parties without notice or assent stand unaffected.5

§ 125. Right of Fixtures as between Personal Representative and Devisee. As between personal representative and devisee, the rule is that a testator may devise such fixtures as are severable from the freehold, and which would go to his personal representative to the exclusion of the heir; but if the estate itself be not devisable, things which are attached to it will not pass under a devise of them. Hence, it is held that if a tenant for life or in tail devise fixtures, his devise is void, for he had no power to devise the real estate to which they are incident. It would seem, however, that where a testator had a devisable interest, a devise of the house would pass the fixtures, although not expressly named; unless, indeed, things could be readily considered personal estate, so as to go to the executor.7 The rights of the devisee of lands against the executor of the devisor would seem, on principle, to be the same as those of the heir in whose place the devisee

stands.

The intention of the will is to prevail, however, as in other cases.2

§ 126. Right of Fixtures in Miscellaneous Instances. — Questions respecting the right to fixtures have also arisen between the assignees of bankrupts and mortgagees, or other parties. Bankruptcy statutes may differ, and decisions of the courts with them. But, generally speaking, the assignees of a bankrupt tenant would be entitled to whatever interest in the fixtures the bankrupt himself possessed.3

The same strict rule which holds true as between heir and executor, vendor and vendee, mortgagor and mortgagee, has been applied as between tenants in common on a division.1 Also between heir or vendee of husband and his widow in respect to the dower premises. Also between debtor and creditor, where the latter levies for debt upon the land of the former. One's rights to remove things annexed to land which he had good reason to suppose his own, but of which he was dispossessed afterwards, by one with superior title, deserve indulgence. And so, too, when, pending some negotiation or honest dispute of title, one annexes his personalty to the other land, with the latter's acquiescence.8

§ 127. Time within which Fixtures should be removed. Two important points are observable with regard to the right of removal of fixtures: first, the time within which

12 Smith Lead. Cas. 248. See Stuart v. Bute, 3 Ves. 212.

2 See Wood v. Gaynon, 1 Ambl. 395; Lushington v. Sewell, 1 Sim. 435. We have seen that, in the case of emblements, a devisee's right is quite favorably regarded, upon the presumed intention of the testator to give the land and all incidental benefits. Supra, § 106.

8 See Trappes v. Harter, 3 Tyrw. 603; Horn v. Baker, 9 East, 215; Ex parte Cotton, 2 M. D. & De G. 725; In re Richards, L. R. 4 Ch. 630. Trustee in bankruptcy may disclaim a lease vested in the bankrupt. 7 Ch. D. 127.

4 Parsons v. Copeland, 38 Me. 537. A joint ownership of a chattel protected, notwithstanding annexation to the soil of one of them; their intention being upheld. Young v. Baxter, 55 Ind. 188. See, as to treatment of fixtures on dissolution of a partnership, Seeger v. Pettit, 77 Penn. St. 437.

5 Powell v. Monson Co., 3 Mason, 459; 1 Washb. Real Prop. 7.

Goddard v. Chase, 7 Mass. 432; Farrar v. Chauffetete, 5 Denio, 527.

7 See 42 Kans. 23.

8 Brown v. Baldwin, 121 Mo. 126; 30 Minn. 56.