The decree below should be affirmed, with costs.

Cross V. Marston

17 Vermont, 533. - 1845.

Hebard, J. - There is no question made by either side but that the articles in controversy in this suit, at the time the plaintiff became possessed of them, were personal property; but it is insisted that they became attached to the building, and passed by the deed from Day to the defendant on the 22d of April, 1843. The plaintiff purchased the articles in question in 1836, while he and Day had a mortgage upon the building, in which they then were, and took the case of drawers from the building and carried them to his store. In 1838, Day, who had then acquired the whole title to the building, carried the case of drawers back to the building and leased the building for a book store; and at this time the case of drawers was put in its original place and nailed to the wall, - but in such manner that it might be taken away without injury to the case of drawers, or to the building; and in this situation it remained until 1843, when Day deeded the premises to the defendant; - and it appears, also, from the case, that the plaintiff was not ignorant of the disposition and use of the case of drawers.

The case was disposed of by the County Court, by their informing the parties, that they should instruct the jury, that these articles were so far fixed to the freehold, that they would pass by Day's deed to the defendant; and that, if the plaintiff knew of Day's putting them into the shop, in the situation described, as early as 1838, and acquiesced in their remaining there until after the sale, he would stand in no better situation, in regard to the property, than Day would, had he owned it; and that the jury might infer the acquiescence of the plaintiff, in the use to which Day put the articles, from his long silence, - he knowing of that use. The argument of the case has proceeded mainly with reference to the fact, whether this property, by the use to which it had been put, had become a fixture.

This question about fixtures most frequently arises between landlord and tenant. As between grantor and grantee, it is more proper to inquire whether the thing was so attached to the freehold, that it will pass by the deed; and such is the case in numerous instances, when the same thing might have been taken away by the tenant. And in all these cases, the party fixing the chattel to the freehold, was, at the time, the owner of it. Such was not the fact in this case. The thing was originally a chattel, and the plaintiff was the owner; and there is no proof that he ever parted with his title to it, except by the act of Day, and his own acquiescence in that act. And the inquiry here is, whether that can change the ownership of the property, while the property itself preserves its identity.

It is a principle of law, in relation to this subject, that the owner may pursue his property, wherever he can trace it. But when the property has lost its identity, it ceases to have its legal existence; - as, if one man should convert a quantity of bricks and erect them into a house, and then deed the house to a third person, these bricks will have lost their identity, - they are so changed in their character that they cease to be chattels, and the owner cannot pursue them against such third person. But in this case I apprehend there was no such change of the property, as would give it a different character. The nailing it to the building did not incorporate it into and make it a part of the building. It was merely a part of the furniture of the building, and, as the case finds, capable of being taken away without injury to the property, or to the house. No one would doubt, probably, but what the outgoing tenant would have the right to take property similarly situated.

That, as between Day and the defendant, this property would have passed by the sale, providing Day had owned it, cannot be decisive of the question; for if so, it would apply to all sales, - as when B. sells the horse of A. to C, as between B. and C. the title to the horse passes; but A., being the owner, may pursue the horse, notwithstanding the sale. The main question, in relation to this part of the case, is, whether the property has lost its identity; if it has, the plaintiff cannot pursue it; if it has not, he may pursue it into whatever hands it may have chanced to come.

The defendant relies somewhat upon the case of Goddard v. Bolster, 6 Greenl. 427. But, in relation to that case, whatever there may be peculiar to it, the ground upon which it was put does not conflict with the plaintiff's claim in this case. That decision goes upon the ground that the plaintiff's brother, in the erection of the mill, and the putting in the mill stones and mill irons, acted but as the agent of the plaintiff; and, as the mill was on the plaintiff's land, and erected by the plaintiff's agent, which was the same as if erected by the plaintiff himself, the mill and all its attachments were the property of the plaintiff. No such consideration is involved in the case now before us. The plaintiff did not put the drawers into the building himself, nor was Day his agent in doing it. The plaintiff had no interest in the building, nor in the land upon which it stood. This case, then, loses all its analogy to the case cited. Miller v. Plumb, 6 Cow. 665, presents only the same question, that would arise, if Day claimed this property and had sued the defendant for it. Colegrave v. Dias Santos, 9 E. C. L. 30, is to the same effect; the question was, whether the vendor could recover of the vendee for fixtures, after having given up the possession. Long staff v. Meagoe, 29 E. C. L. 60, was decided upon the authority of the case of Cole-grave v. Dias Santos.

The conclusion, therefore, to which we come, is, that this property was not so attached to the freehold, as to change its character, or lose its legal existence. It once being the property of the plaintiff, it will continue to be his, until he has parted with his interest in it by his own consent, or by the operation of some law. And that presents the inquiry in relation to the other part of the charge of the court. The jury were to infer an acquiescence on the part of the plaintiff in the disposition which Day made of the property, from his long silence.