It is not to be denied that there are strong dicta, and perhaps we may add the principle of several adjudicated exceptions, upon which we might, with great plausibility, declare the machines in question, so essential to the purposes of the manufactory, although entirely disassociated with the freehold, a fit subject for entering into the list of constructive fixtures.
The general importance of the rule, however, which goes upon corporal annexation, is so great that more evil will result from frittering it away by exceptions, than arise from the hardship of adhering to it in particular cases.
Nor can we possibly say, as in the case of the steelyard or engine in the cotton manufactory, cited from Caldecott, that the machines in question must in the nature of the thing, be annexed to the freehold. It appears, by the papers before us, that they have been used with the factory for several years, and have passed with it in conveyances. But the affidavits do not state that they are affixed in any way. They are treated by both parties, for aught I can see, as entirely detached, though the defendant ventures to express an opinion that some of them constitute a part of the factory itself. He gives no particulars, however, from which we can say they make a part, any more than if they were so many chairs to sit on.
It is true, that this factory seems to have been pretty much dismantled. The principal part of its machinery has been treated as mere movables. Both the defendant and Mr. Smith, one of the commissioners, concur in stating that nothing about the factory was treated as a fixture, except the water-wheel, fulling-mill, dye-kettle, press and tenter-bars; and Mr. Smith says the factory was impelled by a valuable water-power. The suspicion would, indeed, be quite strong, from such facts standing alone, that, at least, some of the important and valuable machinery excepted, might be brought within the legal notion of fixtures; and yet the defendant himself has not ventured to state, as I can find, that any part of the particular machinery excepted from the report was in the least dependent for its operation on the water-wheel or other permanent parts of the factory; while Mr. Goodrich, one of the commissioners, says, in his affidavit, that the excepted machinery was not affixed to the building or land. There the case is left; not one of the deponents pointing out any connection whatever. No authority cited on the argument, nor any that I have seen, goes so far as to say that mere loose and movable machines totally disconnected with, and making no part of the permanent machinery of a factory, can be considered a fixture even as between vendor and vendee.
We think the motion must be denied with costs, and the report of the commissioners is confirmed.
2 Watts and Sergeant (Pa.), 116. - 1841.
Trover by Voorhis against Freeman for the conversion of one hundred and six soft and chilled rolls, part of the machinery of an iron-rolling mill. Defendant claims under the foreclosure of a mortgage made by Sample, a former owner; plaintiff claims under an execution sale of the rolls as personal property on a judgment against Sample. Judgment below for the defendant. Plaintiff brings the case on writ of error to this court.
Gibson, C. J. - It is true we ruled in an unreported case, Chaffee v. Stewart, that the spindles and other unattached machinery in a cotton mill, were personal property for purpose of execution, on the authority of certain decisions to that effect, because we were indisposed to be wise above what is written; but an examination of their foundation would probably have led us to a different conclusion It is unnecessary to pass the learning of the subject in review, as a clear birds-eye view of it has been spread before the profession by Mr. Justice Cowen in Walker v. Sherman, 20 Wend. 636, from which it is evident that no distinctive principle pervades the cases universally, and that the simple criterion of physical attachment is so limited in its range, and so productive of contradiction even in regard to fixtures in dwellings to which it was adapted before England had become a manufacturing country, that it will answer for nothing else. My objection to the conclusion drawn from it in that case, is that the court adhered to the old distinction when the question related to a woolen factory, instead of following out the principle started by Mr. Justice Weston in Farrar v. Stackpole, 6 Greenleaf, 157, which must, sooner or later, rule every case of the sort. The courts will be drawn to it by its liberality and fitness, while they will be drawn away from the old criterion by its narrowness and want of adaptation to the business and improvements of the age. By the mere force of habit, they have adhere J to it in almost all cases after it has ceased to be a guide in any but a few; for nothing but a passive regard for old notions could have led them to treat machinery as personal property when it was palpably an integrant part of a manufactory or a mill, merely because it might be unscrewed or unstrapped, taken to pieces, and removed without injury, to the buildings. It would be difficult to point out any sort of machinery, however complex in its structure, or by what means soever held in its place, which might not with care and trouble be taken to pieces and removed in the same way, and the greater or less facility with which it could be done, would be too vague a thing to serve for a test. It would allow the stones, hoppers, bolts, meal-chests, screens, scales, weights, elevators, hopper-boys, and running gears of a grist-mill, as well as the hammers and bellows of a forge, and parts of many other buildings erected for manufactories, to be put into the class of personal property, when it would be palpably absurd to consider them such. If physical annexation were the criterion in regard to such things, the slightest tack or ligament ought to constitute it; else if we were to get away from it even ever so little, we should have no criterion at all. There are so many fashions, methods, and means of it, and so many degrees of connection between material substances, that there is nothing about which men would more readily differ than whether a thing held by a band or a cleat were permanently annexed to the freehold, or only for a season; and the proof of this is seen in the result of the decisions professedly regulated by it. To avoid discrepance it would be necessary to hold the slightest fastening to be sufficient, but to exclude from the character of real property, as well everything constructively attached to it by the nature of the thing, as everything held to the ground by the attraction of gravitation. Thus cleared of its exceptions, the rule of physical annexation, though at best a narrow one, might furnish a criterion of universal application, though without them it would make havoc of the cases already decided, and indeed, produce the most absurd consequences by stripping houses of their window shutters and doors, and farms of the houses themselves. When, therefore, we reflect on the necessary exceptions to the rule, as well as the cases of constructive attachment without the semblance of a tack or ligament, we are not surprised at the confusion and embarrassment in which we are left by the decisions. The inherent imperfections of the rule required so many exceptions to it in order to avoid absurdity and injustice in its application, that it has almost ceased to be a rule at all. Being purely artificial, and having no regard to the purposes for which capital is invested, a rigid application of it would be ruinous to the manufacturer. In Pennsylvania, where a statute directs that real estate shall not be sold on execution before the rents, issues, and profits, shall have been found by an inquest insufficient to satisfy the debt in seven years, not only might this conservative provision be evaded, but a cotton-spinner, for instance, whose capital is chiefly invested in loose machinery, might be suddenly broken up in the midst of a thriving business, by suffering a creditor to gut his mill of everything which happened not to be spiked and riveted to the walls, and sell its bowels not only separately but piecemeal. A creditor might as well be allowed to sell the works of a clock, wheel by wheel. His interest, it may be said, would forbid him to do so; but in the case of a manufactory, he would often be compelled to sell a part, or to sell many times the worth of the debt, and none but a person entering into the business would purchase either a part or the whole. The sacrifice that would be induced by either course, is incalculable; but that is not all. The bare walls of the buildings would be comparatively of little value. They might perhaps answer the purposes of a barn; but so might the walls of a dwelling, when deprived of their doors and windows, and why are these considered a part of the dwelling? Simply because it would be unfit for the purposes of a dwelling without them. What, then, is demanded in the case of a building erected for a manufactory, but an application of the same principle? Whether fast or loose, therefore, all the machinery of a manufactory which is necessary to constitute it, and without which it would not be a manufactory at all, must pass for a part of the freehold. This is no more than an enlargement of the principle of constructive attachment; and it is the principle of Farrar v. Stackpole, glanced at by Lord Mansfield in Lawton v. Lawton, I H. B. 259, note, who seems to have foreseen its day. I speak not here of questions between tenant and landlord or remainderman, but of those between vendor and vendee, heir and executor, debtor and execution creditor; and between co-tenants of the inheritance. With this limitation, nothing said or done by this court, except its decision in Chaffee v. Stewart, already mentioned, and an obiter recognition of an adverse decision, by the judge who delivered the opinion of the court in Gray v. Holdship, 17 Serg. & Rawle, 415, will be found to conflict with the principle pro-posed. Certainly nothing else ever said by us gives countenance to the notion that the rolls of an iron mill may be seized and sold as personal property.