Clearly all buildings will pass, as will the fences, the pumps, the windmills, the walks and other improvements; as will all things that are part of such things, as shutters and screens, although perhaps stored in the basement or attic.24 But mere furniture will not pass, as an organ, yet if as in the case of a church an organ is a part of the general scheme of architecture, it will pass.25 So chairs put in a theater for the purpose of seating the audience are a part of the theater and pass with a sale thereof.26 As of course are the scenery, curtains and the like27
So if a manufacturing plant is sold, all will go therewith which is essential to its completeness as such plant 28 even though not actually attached, or attached by mere weight, or out of place because a substitute is at the time in place (as circular saws for use on the same shaft). But supplies for use in the factory, as for instance paper in a newspaper plant, would not pass. The question is what articles have been added by way of permanent improvement, and what by way of mere furniture, stock in trade, supplies, etc.?
Whether ice boxes, electric light fixtures, cooking ranges, and the like in dwelling houses become a part thereof seems not uniformly established. It would seem that if they are an integral part of the building they ought to pass. It would doubtless surprise the purchaser of an apartment building if it should be said that the seller could strip it of electric light fixtures, gas ranges and ice boxes. And it is doubtful if it would be held that they could be removed. Thus ice boxes have been held part of a flat building although not physically attached where one, was placed in each flat.29 So, the New York Court (in a mechanic's lien case30) while saying inconsistently in one breath that "gas and electric fixtures, as ordinarily attached to a house or other building for use, are in actions between grantor and grantee, landlord and tenant and mortgagor and mortgagee, held to be personal property" immediately follows with the statement "we may, however, take judicial notice of the fact that such fixtures often pass with real property bought or leased, and are unlike articles of furniture, pictures, carpets and hangings, which are easily and customarily moved. They resemble rather furnaces and ranges which are built in and left as a part of the property itself, passing with it from vendor to vendee and from landlord to tenant."
24. Roderick v. Sanborn, 106 Me. 159, 76 Atl. 263.
25. Rogers v. Crow, 40 Mo. 91.
26. Gould v. Springer, 206 N. Y. 641, 99 N. E. 149.
27. Murray v. Bender, 125 Fed. 705.
28. Equitable Guarantee & Trust Company, 8 Del. Ch. 106, 67 Atl. 961.
This latter view certainly seems the sound one and consistent with custom and the understanding of sellers and buyers.
The annexations of a seller who is in possession after the sale are to be regarded in the same way as those annexations before the sale.
The same rule applies here as in the section above. The annexations of the former owner, unless he has a lease (in which case he is to be considered as any ordinary tenant), become a part of the real estate and accrue to the new owner.
29. Williams v. London, 115 N. Y. Suppl. 547.
30. Wahle-Phillips Co. v. Fitzgerald, 225 N. Y. 137, 121 N. E. 762 (1919).
A purchaser who goes into possession under a title that may revest in the seller is to be regarded as making annexations for the permanent improvement of the land and if the title revests in the former owner the annexations pass to him.
One who goes into possession under a defeasible title or under a contract of sale or under a conditional sale of any sort whereby because of nonpayment of installments or other failure the title may revest is to be regarded as having a permanent interest in the land and therefore his improvements are to be regarded as permanent ones, and the same rule applies in his case as in the case of any owner, and the annexations will pass upon the defeasance of his title to the former owner. Thus if A sells property to B under a contract of sale whereby B is to make twenty monthly payments before he shall get a deed, articles annexed by B to the real estate become a part thereof and if B's title by reason of his failure to keep up the installments revest in A, A gets the improvements.30a The same rule is true where title has actually vested, subject to a condition that may defeat it.
Sec 19. ANNEXATIONS OF A MORTGAGOR IN POSSESSION. The same rule applies here as in the case of a grantor as set out in section 16.
A mortgagor in possession is to be regarded as having a permanent interest in the land and his annexations become a part of the security of the mortgagee and cannot be removed after attachment.
30a. Smith v. Moore, 26 111. 392.
The annexations of a mortgagee in possession become a part of the real estate.
The same rule applies here as in the case of the grantor as described in section 16.
The annexations of a tenant for household or trade purposes do not become a part of the real estate unless attached in an extensive manner so that their removal would seriously injure the real estate or destroy the identity of the thing attached, but the fixtures must be removed during the term.
When we come to the case of a tenant we consider one who has only a passing right to the land and he is not to be considered as permanently improving the real estate except as the extensive character of the annexation may show that to be true. If a tenant erects permanent buildings upon the land, or fences, or plants trees, or puts up any permanent structure, these are unquestionably a part of the real estate and therefore as soon as annexed belong to the owner, subject to the lease, and cannot be removed by the tenant,31 but the articles which he attaches for household, ornamental,32 or trade purposes33 can be removed by him even though they are screwed or nailed to buildings, provided a severance of them is not difficult. If a tenant should equip a building with pipes extending through the walls or should place panes of glass in the windows, or should build a porch to the house, he could not take any of these down without the consent of the owner, but if he attaches brackets to the wall, towel hangers, etc., in the bathroom, globes to the gas fixtures, or if in his shops he puts up pulleys, sets up printing presses or attaches any sort of machinery not actually built in the place, he can remove them; so a nurseryman can remove trees planted by him for nursery purposes, but not trees of other sorts. The same would be true of shrubs and bushes. The rule to apply in every case is, that if the article is removable without seriously injuring the real estate at that place the tenant can remove it, as it is not to be presumed that he put it there for permanent improvement.
31. Fletcher v. McMillan, 103 Mich. 494, 61 N. W. 791.
32. Raymond v. Strickland, 124 Ga. 304.
33. Pool's Case, Salk. (Eng.) 368; Ballard v. Alaska Theater Co., 93 Wash. 655, 161 Pac. 478.
The tenant must remove the fixtures during or immediately at the expiration of the term; he cannot afterwards come back and claim the property left by him. The cases do not all agree as to whether he must remove during his term, or immediately after the expiration thereof.
It has been held that a tenant loses the right to remove if he renews the lease.34 This is an essentially unjust rule and has been changed or modified in some jurisdictions.
34. Chicago Sanitary District v. Cook, 167 111. 134.