The legal interest which a tenant has in articles affixed to the realty, but which he has a right to remove, is a right to sever the fixtures and revest himself with the title to them as personalty. Consequently what purports to be a sale of fixtures by a tenant to his landlord is in realty a surrender by the tenant of his right to sever. The title is already in the landlord by virtue of his ownership of the real estate of which the fixtures form part. The bargain is, therefore, neither within the fourth section nor the seventeenth section of the English statute.52 A case where a tenant attempts to sell his fixtures to a third person should be sharply distinguished. Such a transaction involves an agreement on the part of the tenant to transfer the title to them, and, therefore, it is a contract to sell goods. Even if it is contemplated that the buyer shall make the severance, he can only become owner of the property severed by virtue of the agreement that the tenant has made to transfer title. This distinction has not been sufficiently observed by the cases.53
51 The court, therefore, held title to the manure in question did not pass to the purchaser of a farm, it having been agreed that it should not.
52 Hallen v. Runder, 1 C. M. A R. 266; Lee v. Gaakell, 1 Q. B. D. 700; South Baltimore Co. v. Muhlbach, 69 Md. 396, 16 Atl. 117, 1 L. R. A. 507.
53 Lee v. Gaakell, 1 Q. B. D. 700; Moody v. Aiken, 50 Tex. 65. These were both cases where a sale was made to a third person and, in both, the statute was held inoperative. In Lee v. Gaskell, Cockbum, C. J., said: "Fixtures, although they could be removable during the tenancy, as long as they remained unsevered, are part of the freehold and you cannot dispose of them to the landlord or any one else as goods and chattels because they are not severed from the freehold so as to become goods and chattels." To this it should be answered that it is settled that the statute applies to contracts for the sale of goods not in existence as such, or in existence at all at the time of the bargain. The decision of the cases of Lee v. Gaakell and of Moody v. Aiken, was, nevertheless, correct. In each case the action was not between the parties to the bargain, but between the purchaser from the tenant and the landlord. The landlord had no right to set up the lack of memoranda under the seventeenth section. If the seller and buyer are content to make an oral sale or contract to sell, no one else can say that it is invalid. See infra, Sec.632. Browne on the Statute of Frauds, Sec. 234, fails to
What are fixtures may depend to some extent upon the agreement of the parties.54 For the same reason that a sale of fixtures by a tenant to his landlord is not a sale of goods, so a contract by which one person agrees to make improvements on land of another who agrees to pay subsequently for the improvements is not within the statute, whether the agreement to pay is made before or after the improvements have been made.55