Cases where landowner has sold chattel or given chattel-mortgage thereon after annexation come under head of "Severance," supra.

Myers to have possession subject to proper care of the machinery and compliance with the terms of the contract.

Myers set up the mill upon a farm in which he owned an undivided interest. Thereupon Myers quit-claimed the farm to defendant Walker. Verdict and judgment below for plaintiff. Defendant appeals.

McGrath, J. (after stating facts). - The case is ruled by Adams v. Lee, 31 Mich. 440, and Robertson v. Corsett, 39 Id. 777.

In Adams v. Lee, the court say: "All the time, therefore, the parties have had title to the machinery distinct from their title to the land, and this fact of itself is conclusive that the former was personalty; for to constitute a fixture there must not only be physical annexation in some form to the realty, but there must be unity of title, so that a conveyance of the realty would of necessity convey the fixture also. When the ownership of the land is in one person, and of the thing affixed to it is in another, and in its nature is capable of severance without injury to the former, the latter cannot, in contemplation of law, become a part of the former, but must necessarily remain distinct property, to be used and dealt with as personal estate only. And the fact that the owner of the thing affixed to the freehold has also an undivided interest in the latter, cannot render the former a fixture when the interests are different in extent. A thing cannot, as to an undivided interest therein, be real estate, and as to another undivided interest be personalty. It must be the one thing or the other. And the position which is taken by Lee in this case involves this absurdity: That Kaufman, at the time when he and Kinney were severally the owners of an undivided half of the land, might have sold that, and, as a necessary consequence, transferred an undivided one-half of the machinery also, though the whole of the machinery belonged to Kinney as exclusive owner. This would be the necessary result if the machinery was real estate, for there could be no such a thing as attaching it to an undivided interest in the land only."

In Morrison v. Berry, 42 Mich. 389, the ownership of the land and of the thing affixed was in one and the same person. It was there held that the annexation of the thing to the freehold was not the wrongful act of the landowner, but that, by act and intervention of the claimant, the article became a part of the freehold.

In Knowlton v. Johnson, 37 Mich. 47, T. owned the land and mill. S. was the lessee. The water-wheels were a part of the structure. Plaintiffs furnished the water-wheels to S., with the understanding that they were to be put in the mill, and there used ; and, against the objection of T., the old wheels were taken out and the new put in.

Six months afterwards S. surrendered his lease, and T. leased to M. T. finally sold the mill property to defendant, and plaintiffs brought trover. The court say:

"The plaintiff deliberately agreed that the water-wheels should be converted in all outward appearance into real property, and they thereby put it in the power of Trimmer to make sale of the wheels as part of the mill."

In the present case the contract of sale provided for the use of the machinery, not only in the township of Sandstone, but in adjoining townships. Myers was not the sole owner of the land upon which it was placed, but he was sole owner of the interest in the machinery, and operated it solely in his own behalf. The structure covering the boiler and engine was but a temporary one. The machinery in question did not consist simply of a pulley, shaft, or wheel which was to be attached to other machinery already a part of a saw-mill, and, as such, a part of the realty, but it was a complete outfit, designed by the agreement to be portable. There was nothing done by plaintiff indicative of an intent to permit the machinery to be so annexed to realty as to change its character. The state of the title to the realty, and the conduct of Myers regarding the machinery, negatived any intent on his part to allow his interest in the machinery to be absorbed by the owners of the realty, or to permit it to be merged. The circumstances of the purchase by defendant clearly indicate that he took the entire interest in this machinery, while he took but an undivided interest in the realty. He afterwards operated the machinery as sole owner.

It was held in Wheeler v. Bedell, 40 Mich. 693, 696, that there is no universal test by which the character of what is claimed to be a fixture can be determined in the abstract; neither the mode of annexation nor the manner of use is in all cases conclusive. It must usually depend on the express or implied understanding of the parties concerned.

In Coleman v. Manufacturing Co., 38 Mich. 30, 40, the court, commenting upon a line of authorities which seem to regard the manner of the attachment to the realty as the test, say:

"This, however, is a very extreme view, and is hardly compatible with the tenor of our own previous decisions. It seems to overlook or ignore one test, and frequently the most important test, namely, the intent of the party making the annexation." See, also, Man-waring v. Jcnison, 61 Mich. 117.

The judgment is affirmed.

Tifft V. Horton

53 New York, 377. - 1873.

Action to recover damages for alleged conversion of a boiler and engine.

Plaintiff sold a Mrs. Brown an engine and boiler to be put up in the latter's elevator. A chattel mortgage was given for the machinery before it was delivered. There was a clause in the chattel mortgage that the property should remain personal until paid for, notwithstanding mode of annexation in elevator. They were then affixed.

Defendants claim title under their real estate mortgages executed by Mrs. Brown before the engine and boiler were set up on the premises. Judgment below for plaintiff. Defendants appeal.