An entry for the purpose of taking unripe corn, or other produce, which would yield nothing, but in fact be wasted and destroyed by the very act of severing it from the soil, would not be protected by this decision.

Let the defendant have judgment for his costs.

Ellithorpe V. Reidesil

71 Iowa, 315. - 1887.

Reed, J. * * * Plaintiff acquired title to the premises on the sixth of July, 1885, by deed from the Iowa Railroad Land Company. In 1880 that company had executed a contract for the sale of the land to W. R. Able. M. R. Elitlhorpe became the owner of this contract by assignment, and he went into possession of the premises in 1884. He cultivated the land during that year, and raised a crop thereon during that year. He also planted the crops in question in 1885. At some time before the date of the deed from the land company, he assigned the contract to plaintiff, who paid the balance of the purchase money due thereon and received the conveyance; but the date of that assignment was not shown. The defendant, Reidesil, recovered a judgment against M. R. Ellithorpe in Justice's Court, on which an execution was issued on the sixth of June, 1885. The constable to whom this execution was directed attempted to levy the same on the crops growing on the premises, and on the sixth of July following he offered them for sale under the execution, and they were bid in by defendant Lein-miller. At the time of the levy and sale, the crops were all immature, some of them having been planted but a short time before the levy. Leinmiller entered upon the premises some three or four weeks after this purchase, and harvested a portion of the crop, and removed a small portion of the grain from the premises; and these are the acts of which plaintiff complains.

Plaintiff claimed that his purchase of the contract was made before the sale on execution; but, as stated above, the date of the assignment was not proven. Nor did he prove that Leinmiller had any notice of his purchase when he bid in the crops at the execution sale. The Circuit Court ruled that, as Leinmiller had no notice of plaintiff's ownership of the premises when he bid in the property, he acquired title to it and was not guilty of a trespass in gathering the crops after they matured. This ruling cannot be sustained. There is no pretense that constable had any authority or power to levy on or sell any interest in the real estate. Nor is it claimed that he did so. The whole proceeding was on the theory that the crops were personal property, and could be levied on and sold as such. But while they remained immature, and were being nurtured by the soil, they were attached to and constituted part of the realty. They could no more be levied upon and sold on execution as personalty than could the trees growing upon the premises. The doctrine is elementary, and it has frequently been declared by this court. See Downard v. Groff, 40 Iowa, 597; Burleigh v. Piper, 51 Id. 649; Hecht v. Dettman, 56 Id. 679; Martin v. Knapp, 57 Id. 336. The case is very different in its facts from Nulkolls v. Pence, 52 Id. 581. In that case, although the crop was immature when plaintiff purchased the premises, it was mature when the execution against the vendor was levied upon it and it was sold; and it was held that it was then personalty; and as the purchaser at the execution sale had no notice of the change of ownership, he acquired title by his purchase. But in the present case it pertained to the realty when the attempt to sell it was made. The purchaser, therefore, acquired nothing by his purchase. Conceding that the plaintiff had no interest in the premises before the execution of the deed from the land company, as the crops were then immature, they passed to him by the conveyance as part of the realty. Reversed.

V. Fixtures.1

1. Necessity for "Annexation," Either Mediately or Immediately, to the Soil.

a. Actual and constructive annexation.

Walker V. Sherman

20 Wendell (N. Y.), 636. - 1839.

Partition. The parties were tenants in common of a woolen factory, a house, barn and twenty acres of land. The commissioners to make partition failed to take into account certain articles of machinery, regarding them as personal property. Defendants allege this as error and move to set aside the report.

By the Court, Cowen, J. - Judging from the affidavits before us, the machinery which the commissioners excluded as being personal property, was such only as was movable, and in no way physically attached to the factory or land, though it had been used for several years, as belonging to the factory, and was as material to its performance in certain departments of its work, as the machinery which

1 "A fixture may be defined as an article or structure which, in itself personal property, has been annexed, or has become accessory to real estate," Chase's Blackstone (3rd ed.), n. p. 223. As thus defined "fixtures" are either "removable" or "irremovable." For other definitions see cases reported herein. Cases on houses and other structures built on the land are included here under the head of "fixtures." - Ed, was actually affixed. Did the commissioners err in disregarding the movable machines? That is the only question. If they were right, the equality and justice of the partition are apparent upon the proofs; if wrong, the report should be set aside, and the commissioners be required to review their decision.

The question is one between tenants in common, the owners of the fee; and is, we think, to be decided on the same principle as if it had arisen between grantor and grantee, or as if partition had been effected by the parties through mutual deeds of bargain and sale. As between such parties, the doctrine of fixtures making a part of the freehold, and passing with it is more extensively applied than between any others. As between tenant for life or years and reversioner or remainderman, all erections by the former for the purposes of trade or manufactures, though fixed to the freehold, are considered as his personal property, and as such, may be removed by him during his term, or be made available to his creditors on a fieri facias. On his death, they go to his executors or administrators; yet by a conveyance, they pass to the vendee. Fructus industriales it is well known, always go, on the owner's death, to the executor or administrator, not to the heir; whereas, they are carried by a devise or other conveyance of the land, to the devisee or vendee. Spencer's Case, Winch. 51; Austin v. Sawyer, 9 Cow. 39; Wilkins v. Vashbinder, 7 Watts, 378, and cases cited overruling Smith v. Johnston, 1 Pa. 471, contra. The general rule is, that anything of a personal nature, not fixed to the freehold, cannot be considered as an incident to the land, even as between vendor and vendee. The English cases on this subject are, most of them, well collected and arranged in Amos & Ferard, Law of Fixtures, p. 1, ch. 1, and p. 180, ch. 5, Am. ed. 1830. For some still later, see Gibbons, Law of Fixtures, 15, ch. 2. The American cases are mostly collected in 2 Kent, Com. 345, 3d ed., n. c. I have said that, as a general rule, they cannot be considered an incident unless they are affixed. This is not universally so. A temporary disannexing and removal, as of a millstone to be picked, or an anvil to be repaired, will not take away its character as a part of the freehold. Locks and keys are also considered as constructively annexed; and in this country it must be so with many other things which are essential to the use of the premises. Our ordinary farm fences of rails, and even stone walls, are affixed to the premises in no other sense than by the power of gravitation. It is the same with many other erections of the lighter kind about a farm. I shall hereafter have occasion to notice these and a few other like instances of constructive fixtures. I admit that some of the cases are quite too strict against the purchaser; but as far as I have looked into them, and I have examined a good many, both English and American, they are almost uniformly hostile to the idea of mere loose, movable machinery, even where it is the main agent or principle thing in prosecuting the business to which a freehold property is adapted being considered as a part of that freehold for any purpose. To make it a fixture, it must not only be essential to the business of the erection, but it must be attached to it in some way; at least, it must be mechanically fitted, so as, in ordinary understanding, to make a part of the building itself.