The question has been occasionally examined in this court as between grantor and grantee, and in some other relations. The most material cases are Heermance v. Vernoy, 6 Johns. 5; Cresson v Stout, 17 Johns. 116, 121; Miller v. Plumb, 6 Cow. 665; Austin v. Sawyer, 9 Cow. 39; and Raymond v. White, 7 Id. 319. None of them treat a personal thing as a fixture short of physical annexation; and some are peculiarly strong against the purchaser. * * *

The cases of constructive annexation, where the article is seldom or never corporally attached to the realty, are few, and may be set down as exceptions to the general rule. They are said to be the charters or deeds of an estate and the chest containing them, deer in a park, fish in a pond, and doves in a dove-house. 2 Com. Dig. Biens, B. 6 Greenl. 157; 3 Dane's Abr. 156; 3 N. H. 505. The deer, fish and doves are set down by Amos & Fer. Fixt. 168, as heirlooms; and so of various other animals. Heirlooms are a class of property distinct from fixtures. But " the doors, windows, locks, keys and rings of a house will pass as fixtures, by a conveyance of the freehold, although they may be distinct things; because they are constructively annexed to the house." Amos & Fer. Fixt. 183, and the book there cited. Many other obvious cases may be supposed. One is, our ordinary Virginia fence on country farms. No vendor would consider that as mere personal property. And in Kittredge v. Woods, 3 N. H. 503, it was held that manure lying about a barn yard passed by a conveyance of the land as an incident.

These instances seem fully to justify the courts when they speak of the great difficulty in fixing on any certain criterion which shall govern all cases. They lead to a strain of reasoning by Mr. Dane, in the third vol. of his Abridgment, p. 156, as well as by Weston, J., in Farrar v. Stackpole, by which, if followed out in practice, the machinery now in question might well be considered as a part of the realty; and, therefore, the subject of partition, Mr. Dane says, that in all the instances put by him, the articles " are very properly a part of the real estate and inheritance, and pass with it because not the mere fixing or fastening to it is alone to be regarded; but the use, nature and intention." * * *

The ancient distinction, however, between actual annexation and total disconnection is the most certain and practical; and should, therefore, be maintained, except where plain authority or usage has created exceptions. The reasoning of Mr. Dane, and of the learned Judge in Farrar v. Stackpole, before cited, while it cannot be too extensively applied to modern machinery in subordination to that distinction, does not appear to be sustained by authority, when it seeks to raise a general doctrine of constructive fixtures, from the moral adaptation of what is in fact a mere movable, to the carrying on a farm or factory, etc., however essential the movable may be for such purpose. The argument in that shape proves too much. Such adaptation and necessity might be extended even to the use of domestic animals on a farm, and certainly to many implements in a manufactory which could never be recognized as fixtures, without utterly confounding the rule by which the rights of the heir or the purchaser have been long governed. The judicial application of the rule is already sufficiently nice and difficult. As between heir and executor, it was partially altered by 2 R. S. 24, sec. 6, sub. 4, 2d ed.1 By this, " Things annexed to the freehold, or to any building, for the purpose of trade and manufacture, and not fixed into the wall of a house, so as to be essential to its support," pass to the executor. And see 3 Id. 638, 9, 2d ed. Appendix. This provision certainly indicates anything but a legislative intent to enlarge the rights of freehold. • Taken literally, it would strip the heir of the wheels, gearing and all the other machinery fixed in the ordinary way to a mill or manufactory inherited by him. It is certainly contrary to the ancient common law; see 11 Vin. 167, Executors, Z. pl. 6; Amos & Fer. Fixt. 133, and cases there cited on to p. 138; and seems to derive very questionable countenance from more modern authority. Squire v. Mayer, a short note of which is given in 2 Freem. 246, goes the farthest towards our statute rule; but how very doubtful this and some other modern cases of the like tendency are may be seen by Amos & Fer. Fixt. ch. 4, sec. 2, p. 151, and cases there cited. See also Gibbons, Fixt. 11, 12. As between devisee and executor, the suggestion of Vice-Chancellor Hart in Lushington v. Sewell, 1 Sim. 435, 480, seems to go beyond any adjudged cases in favor of the freehold. He inclined to think that the devise of a West India estate would pass the incidental stock of slaves, cattle and implements; because such things are essential to render the estate productive; and, denuded of them, it would be rather a burden than a benefit.

1 New York Code of Civil Procedure, § 2712, Subd's 4 and 9. - Ed.

It is, I think, obvious, not only from our statute, but from both the English and American cases, that there is a stronger tendency to consider fixtures for the purpose of trade as mere personal property, than we find either in regard to those of an agricultural or domestic character. See Gibbons, Fixt. 10, 11; Amos & Fer. Fixt. 138, ed. of 1830. By several English cases cited in these treatises the executor was in respect to trade fixtures preferred in his claim against the heir, though the doctrine is far from being settled. By several American cases we have seen, that such fixtures were denied to have passed even as between the vendor and vendee of the freehold; though such a rule derives no countenance, or certainly very little, from any English authority, and seems to be against the weight of American adjudication.

On the whole, I collect from the cases cited, and others, that, as a general rule, in order to come within the operation of a deed conveying the freehold, whether by metes and bounds of a plantation, farm or lot, etc., or in terms denoting a mill or factory, etc., nothing of a nature personal in itself will pass, unless it be brought within the denomination of a fixture by being in some way permanently, at least habitually, attached to the land or some building upon it. It need not be constantly fastened. It need not be so fixed that detaching will disturb the earth or rend any part of the building. I am not prepared to deny that a machine movable in itself, would become a fixture from being connected in its operations by bands, or in any other way, with the permanent machinery, though it might be detached, and restored to its ordinary place, as easily as the chain in Farrar v. Stackpole. I think it would be a fixture notwithstanding. But I am unable to discover, from the papers before us, that any of the machines in question before the commissioners were even slightly connected with the freehold. For aught I can learn, they were all worked by horses or by hand, having no more respect to any particular part of the building, or its water-wheel, than the ordinary movable tools of such an establishment. These would have their common place, and be essential to its business. So a threshing machine, and the other implements of the farmer. But it would be a solecism to call them fixtures, where they are not steadily, or commonly attached, even by bands or hooks, to any part of the realty. The word "fixtures" is derived from the things signified by it being fastened or fixed. "It is a maxim of great antiquity, that whatever is fixed to the realty is thereby made a part of the realty, to which it adheres, and partakes of all its incibents and properties." Toml. Law Dic. Fixtures. Hence "fixtures" are defined to be chattels or articles of a personal nature which have been affixed to the land." Id. "It is an ancient principle of law," says Weston, J., in Farrar v. Stackpole, "that certain things, which in their nature, are personal property, when attached to the realty, become part of it as fixtures." And see Amos & Fer. Fixt. ch. I, p. I.