1 am aware that it is said to have been held that if an apple tree blown down, and the tenant cut it, it is no waste. 2 Rolle Abr.
S20. That may well be, for the falling of the tree is through the act of God, not of the tenant, and the cutting of the fallen timber is but an exercise of the tenant's right to estovers; but if he remove from the land fallen timber, it has been ruled to be waste.
What then is the criterion by which we are to determine whether that which was once a part of the realty has become personalty on being detached? Not capability of restoration to the former connection with the freehold, as is contended, for the tree prostrated by the tempest is incapable of reannexation to the soil, and yet remains realty. The true rule would rather seem to be, that which was real shall continue real until the owner of the freehold shall by his election give it a different character. In Shepherd's Touchstone 90, it is laid down that, "that which is parcel or of the essence of the thing, although at the time of the grant it be actually severed from it, does pass by a grant of the thing itself, and therefore by the grant of a mill, the mill-stone doth pass, although at the time of the grant it be actually severed from the mill. So by the grant of a house, the doors, windows, locks, and keys do pass as parcel thereof although at the time of the grant they be actually severed from it."
It must be admitted that the case before us is one almost of the first impression. Very little assistance can be derived from past judicial decision. There is supposed to be some analogy between the character of these fragments of the buildings and that of a displaced fixture. The analogy, however, if any, is very slight. These broken materials never were fixtures, though they had been fixed to the land. They had been as much land as the soil on which they rested. Severance had never been contemplated. One of the best definitions of fixtures is that found in Shean v. Rickie, 5 Mees. & W. 171. They are those personal chattels which have been annexed to the freehold, but which are removable at the will of the person who has annexed them, or his personal representatives, though the property in the freehold may have passed to other persons. Yet even fixtures, which but imperfectly partake of the character of realty, go to the purchaser, at sheriff's sale of the land, though they have been severed tortiously, or by the act of God. Thus, where a copper kettle had been detached from its site in a brewery by one not the owner, had remained detached for a long period, and while thus severed, had been pledged by the personal representatives of the owner, it was still held to have passed by a sheriff's sale of the brewery under a mechanic's lien, filed before the severance. Gray v. Holdship, 17 S. & R. 413.
Without, however, discussing the question further, it will be perceived that in our opinion the broken materials of the fallen building must be considered as a parcel of the realty as between the assignees and the purchaser at sheriff's sale, and consequently that they passed by the sale to the purchaser.1
The judgment is affirmed.
C. Sale of fixtures on execution.
4 Harrington (Del.), 332. - 1848.
Harrington, J. - The property levied on by this execution, so far as the present motion appears, consists of real fixtures placed upon the premises by the owner of the property, and by him attached to the freehold. They became by his act a part of the foundry, not for a temporary purpose, but as a fixed establishment; and, as such, were used by the defendants in copartnership, the owner of the premises being one of the partners. Having thus acquired the character of real property by such a union and connection with the realty as unquestionably made them, in his hands, a part of the freehold, subject to real estateliens, and not liable to be seized as chattels, this character could not be changed otherwise than by actual sever ance; nor could they be transferred before severance except as a part of the realty, and by forms of conveyance suited to real property. The parol sale, therefore, to Adams, Betts & Hodgson, evidenced by the written memorandum without date, even if made before the entry of Orrick & Campbell's judgment, would not prevent the lien of that judgment, nor subject these fixtures to seizure on plaintiff's execution as the personal chattels of the defendants in preference to the judgment of Orrick & Campbell. We are, therefore, of opinion that the rule in this case should be made absolute; and we do not consider this as in any degree conflicting with adjudged cases in relation to trade fixtures set up by tenants, for their own use and convenience, to facilitate the carrying on their business.
1See also Goodrich v. Jones, supra, p. 255. - Ed.
3. The Intention of the Party Annexing as Bearing on the Question of Removability.
a. Relative importance of this test.
66 New York, 489. - 1876.
Action by plaintiff as real estate mortgagee against defendants, who are judgment-creditors of the mortgagor and the sheriff holding executions on their judgments, to restrain them from selling on such executions certain machinery which plaintiff claims to be part of the realty. The further facts sufficiently appear in the opinion. The plaintiff succeeded in the trial court and on an appeal to the General Term. Defendant appeals to this court.
Rapallo, J. - The court found as facts that the articles of machinery described in the complaint were fixtures and part of the freehold, and as facts showing that they were fixtures: First, that the building in which the machinery was, was erected for the purpose of a twine factory, and machinery specially adapted to it and used with it; second, that the original intention of this annexation was to make this machinery permanently a part of the building and the freehold; and, third, that the mortgage under which the plaintiff claims title was to secure to him the payment of the purchase money of the premises described therein, and was taken by him and given to him with the intention of holding the machinery in question as part of the realty, and not as personal property.