Though the defendants became the purchasers of the land on the foreclosure of the mortgages, and were the owners of it in fee, and probably in actual possession of it, and of the boilers and engines annexed to it, before this action was brought or demand made of them for these chattels, yet they are to be considered in this case only as prior mortgagees of it. Such is the effect of the stipulation made by them that the sale upon the decrees should not in any manner change the legal rights of the plaintiffs in this action; but for this, it would have been necessary to have determined the effect upon the rights of the parties of the sale on foreclosure, and the change of title and possession of the lands, and the application to that state of facts of the principle laid down in Lane v. King, 8 Wend. 584, and kindred cases.

It appears that the boilers and engines cannot be removed without some injury to the walls built about them, and which are a part of the real estate; yet this fact will not debar the plaintiffs. The chattels have not become a part of the building; the remvoal of them will not take away or destory that which is essential to the support of the main building, or other part of the real estate to which they were attached; nor will it destroy or of necessity injure the chattels themselves; nor will the injury to the walls about them be great in extent or amount. So that the limitation hereinbefore stated does not apply.

It is proper to add, that the English case cited and much relied upon by the defendants has not been overlooked. Walmsley v. Milne. 7 C. B. N. S. * 115. I do not gather from it that the decision was placed upon the ground (as the defendants claim), that the mortgagee of the land did not expect or understand that the chattels annexed were removable or to be removed. The opinion of the court seems summed up in the concluding sentence: "We think, therefore, that when the mortgagor (who was the real owner of the inheritance), after the date of the mortgage, annexed the fixtures in question for a permanent purpose and for the better enjoyment of his estate, he thereby made them a part of the freehold which had been vested by the mortgage deed in the mortgagee." It is to be borne in mind, too, that in England and in Massachusetts the rights of a mortgagee of land in the mortgaged premises are greater than in this State. He is regarded as the owner and the mortgagor in the light of a tenant. So that things annexed to the land become fixtures upon the land of the mortgagee, as it were. See case last cited, page *133; Butler v. Page, 7 Mete. 40.

The judgment should be affirmed, with costs to the respondents.

Binkley V. Forkner

117 Indiana, 176. - 1888.

Suit to foreclose a chattel mortgage.

One Kemper purchased a parcel of real estate, giving a mortgage thereon for the purchase price. He had already bought an engine and other machinery of Hadley, Wright & Co., to be used on the land, and given this chattel mortgage therefor, agreeing orally that the machinery should be treated as personal property until paid for. The machinery was then annexed to the premises, but it appeared in evidence that the machinery could be removed without material injury to the building, except to the masonry which supported engine and boiler, and without detriment to the machinery, and that the value of the real estate would not be appreciably diminished otherwise than by the absence of the machinery.

Later on a second mortgage was placed on the land in which the mortgagor also mortgaged and warranted all machinery, describing it, and provided that none of said machinery should be removed until the mortgage should be paid. All the mortgages were duly filed or recorded.

Mitchell, J. - * * * The controversy here is between the appellant, Binkley, the assignee of the notes secured by the chattel mortgage to Hadley, Wright & Co., and the Eckarts and the Dubois County Bank, who were made parties defendant by Binkley, to a suit brought in the Superior Court of Marion county to foreclose the chattel mortgage.

On the one hand the insistence is, that, notwithstanding the annexation of the machinery to the real estate, as already described, it retained the character of personalty in consequence of the prior chattel mortgage, and the contemporaneous agreement that it should be treated as personal property until the notes given for the purchase price to Hadley, Wright & Co. had been paid.

Admitting that Hadley, Wright & Co. held a valid chattel mortgage upon the machinery prior to its annexation to the realty, the result to which the argument leads, on the other hand, is, that, because the machinery was annexed to the freehold by the owner, and was peculiarly adapted to be used in connection with the building in which it was placed, the law will raise a conclusive presumption that the owner intended it as a permanent accession to the land. Hence the conclusion insisted upon is, the character of the machinery as personal property came to an end when it was annexed to the land, and that of realty became inevitably fixed upon it.

The question thus presented has been the subject of much discussion, and the result deducible from the reported cases is not in every respect harmonious, or of so definite and precise a character as could be desired. Very much depends upon the relation which the persons between whom the question arises sustain toward each other, whether it be that of personal representative and heir of a deceased person, landlord and tenant, vendor and vendee, mortgagor and mortgagee or some other, which may give a peculiar character to the case. While some rules of general application have been formulated, in the very nature of the subject each case must in some degree be controlled by the varying circumstances peculiar to it.

The united application of three requisites is regarded as the true criterion of an immovable fixture: (1) Real or constructive annexation of the article in question to the freehold. (2) Appropriation or adaptation to the use or purpose of that part of the realty with which it is connected. (3) The intention of the party making the annexation to make the article a permanent accession to the freehold. Teaff v. Hewitt, I Ohio St. 511, 530; Potter v. Cromwell, 40 N. Y. 287; Ewell, Fixtures, 21; Tyler, Fixtures, 114; McRea v. Central Nat'l Bank, 66 N. Y. 489.