If Cross had stood by and seen Day sell the property, without remonstrating, he would be estopped from claiming it of the purchaser; but I do not suppose that anything is to be inferred, in a legal point of view, unfavorable to his claim, simply because he has delayed to assert his claim, unless barred by the statute. As the claim is not barred by the statute, and as the case does not find that the plaintiff ever stood by and saw Day attempt to pass over the property, without objecting, we do not see how he has, either by his own consent, or by the operation of law, parted with his interest in the property, or forfeited his right to pursue and claim his property wherever he can find it.
Indeed, the question of acquiescence, it seems to me, has nothing to do with the case. If Day could transfer a title in the property to the defendant, it was because it had ceased to be a chattel interest; if that was the condition of the property, it was the attaching the property to the building, that wrought the metamorphosis; therefore the property became changed, and the plaintiff lost his interest in it the moment the nail was driven, if he ever lost it. But we have already said that this was not such a use of the property as was inconsistent with the nature and character of the property itself, or with the plaintiff's claim and title to it.
18 New York, 28. - 1858.
Johnson, Ch. J. - The question in this case is, whether the twenty-five broad looms levied upon under the executions of the defendants, Gifford, Sherman, and Innis, were personal property; or whether, as being part of the realty, they were bound by the lien of the mortgage which the plaintiffs are seeking to foreclose. The mortgage was of " all that estate and real property, known as the Owasco Woolen Factory, situate on the Owasco outlet, in the city of Auburn, county of Cayuga and State of New York, the same being the plot of ground, buildings and water privileges lately owned by the Auburn Woolen Company, and the same being all the property recently conveyed by the trustees of said company, by deed to Harris & Waterman; and it is intended that the whole property conveyed by said deed, and every part thereof, is included in and covered by this deed, with all the machinery and the fixtures of all kinds whatever now in the mills lately belonging to said woolen company, together with all and singular the tenements, hereditaments and appurtenances," etc. Conceding that the looms now in question were intended to pass and did pass by the terms of the mortgage, the question is, whether they passed as part of the real estate. For if they did not pass as realty, then it was necessary, as there was no actual change of possession, that the mortgage should be filed as a chattel mortgage, which was not done. The question for this purpose is, therefore, the same as would have been presented if the mortgage had described, by metes and bounds, and had conveyed, in terms, the land on which the factory was situated, without specifying the building, machinery and fixtures. For, although the intent of parties is to govern as to the subject on which a conveyance is to operate, it is beyond their power to make a conveyance operative without a compliance on their part with the rules of law in respect to the mode of conveyance appropriate to the kind of property sought to be conveyed. As they could not, by writing without seal, pass the title of land, though their written agreement termed it personalty and declared it should pass, so they cannot, by an instrument and by ceremonies appropriate to pass land, transfer chattels in mortgage, as against creditors of the mortgagors, without either an actual change of possession, or filing the instrument as a chattel mortgage.
The question then is, were these looms realty as between mortgagor and mortgagee? Between these parties and between grantor and grantee, the effort of a court is always to ascertain the intent of the parties, and to give it effect. If their language affords evidence that a chattel is intended to pass, it will pass, of course, whether it be a mere chattel or one which by annexation has become part of the realty. But where no specific intention is collectible, or where the conveyance is of land by metes and bounds, and on the land a building stands in which is the thing in controversy, there it will pass or not, according as the thing is or is not, in law, part of the realty. In such a case, the only specific intention is, that the realty shall pass, and the inquiry to which a court in such a case addresses itself is, does the law regard the thing in question as pertaining to the realty? It is obvious that this question presents itself in the neatest way, completely unembarrassed by any collateral consideration, upon the death of the general owner in fee of the land. The chief distinction between the different species of property, is in the course of devolution on the general owner's death. Realty goes to the heir, personalty to executor or other personal representative. Accordingly, the cases of heir and executor, and of vendor and vendee, in the absence of evidence of specific intention, have always been deemed identical in respect to their right in a chattel claimed to be a part of the realty. It was so held in 21 Hen. 7th, 26, and it has continuously since been so held. Holmes v. Tremper, 20 Johns. 30; Miller v. Plumb, 6 Cow. 668; Farrar v. Chaufetete, 5 Denio, 527. And whenever it has become necessary to consider such a question between vendor and vendee, resort has been had for its solution to the case of heir and executor, where the same question was presented, unembarrassed by evidence of any particular intention; a kind of evidence from which a deed from grantor to grantee would rarely be free. A statute, therefore, determining the course of devolution of property on the death of the general owner, if it is not conclusive to fix the character of property for all purposes, is at least very strong evidence in respect to its legal character. When the statute gives a particular species of property to the executor, and gives lands, tenements and hereditaments to the heir, it should be regarded at least as furnishing very clear proof, that in the legislative mind that kind of property is considered as not being in any sense included in lands, tenements or hereditaments. The Revised Statutes (2 R. S. 83, sec. 7) declare that things annexed to the freehold, or to any building, shall not go to the executor, but shall descend with the freehold to the heirs or devisees, except such fixtures as are mentioned in the fourth subdivision of the sixth section, and that subdivision declares that " things annexed to the freehold or to any building, for the purpose of trade or manufacture, and not fixed into the wall of a house, so as to be essential to its support," shall be deemed assets, and shall go to the executors or administrators.