2. Between executor of tenant for life, or in tail, and the remainderman, in which case the right to fixtures is considered more favorable for the executor.
3. Between landlord and tenant, in which case, in favor of trade, and to encourage industry, the greatest latitude is allowed, so that all fixtures set up for better enjoyment of trade are retained by the tenant, though this does not include fixtures used for agricultural purposes. Where, however, they are used for mixed purposes of trade and agriculture, they are held to belong to the tenant. Williams on Personal Property, 16, note, and numerous cases cited.
The reason of the distinction is pointed out by Pearson, C. J., very succinctly in Moore v. Valentine, 77 N. C. 188. When additions are made to the land by the owner, whether vendor, mortgagor or ancestor, the purpose is to enhance its value, and to be permanent. With the tenant the additions are made for a temporary purpose, and not with a view of making them part of the land, hence for the encouragement of trade, manufacturing, etc., the tenant is allowed to remove what had apparently become affixed to the freehold, if affixed for purpose of trade, and not merely for better enjoyment of the premises. Pemberton v. King, 2 Dev. 376.
In the present case, it is agreed that " the engine, cotton-gin and condenser were attached to the mill by the tenant by the curtesy after his term commenced, and not solely for the better enjoyment of the land and farm, but for the purpose of milling corn and ginning cotton for the neighborhood, as well as himself, and for the mixed purpose of trade and agriculture."
His Honor properly held that they belonged to the executor of the life tenant as against the remaindermen. This case comes under the second class mentioned by Lord Ellenborough, and there are few adjudications on that class, but the ruling of the court below is sustained by that of Lord Hardwicke in Lawton v. Lawton, 3 Atk. 13, and in Dudley v. Wood, Amb. 113, and the observation of Lord Mansfield in Lawton v. Salmon, 1 H. Bl. 260. There are subsequent cases which all seem to follow the above precedents. Tyler on Fixtures (ed. 1877), 490, 491, 496, 503.
In our own reports, Pemberton v. King, 2 Dev. 376; Feinster v. Johnson, 64 N. C. 259, and Railroad v. Deal, 90 N. C. no, which recognized the right of tenant to remove, were cases between tenant and lessor, while Bryan v. Lawrence, 5 Jones, 337; Latham v. Blakely, 70 N. C. 368; Deal v. Palmer, 72 N. C. 582; Bond v. Coke, 71 N. C. 97; Foote v. Gooch, 96 N. C. 265, and Horne v. Smith, 105 N. C. 322, which adjudged the fixtures to have become part of the freehold, all came under Lord Ellenborough's first class, supra.
This is the first instance in which the rule as to fixtures between executor of tenant for life and the remainderman has come before the courts of this State. It assimilates that between landlord and tenant, the principal difference, perhaps, being that the executor can remove such fixtures within a reasonable time after the death of the life tenant, whereas, between landlord and tenant, the tenant cannot go on the premises to remove the fixtures after the termination of his lease without being a trespasser, except in those cases where the duration of his term is not fixed, but uncertain, or where there is an agreement that he may remove after the expiration of the lease. No error.
c. Annexer is tenant for years.
(1.) Trade Fixtures.
2 Peters, (U. S.) 137. - 1829.
Mr. Justice Story delivered the opinion of the court. - This is a writ of error to the Circuit Court of the District of Columbia, sitting for the county of Washington.
The original was an action on the case brought by the plaintiffs in error against the defendant for waste committed by him, while tenant of the plaintiffs, to their reversionary interest, by pulling down and removing from the demised premises a messuage or dwelling-house erected thereon and attached to the freehold. The cause was tried upon the general issue, and a verdict found for the defendant, upon which a judgment passed in his favor; and the object of the present writ of error is to revise that judgment.
By the bill of exceptions filed at the trial it appeared that the plaintiffs in 1820, demised to the defendant, for seven years, a vacant lot in the city of Washington, at the yearly rent of $112.50, with a clause in the lease that the defendant should have a right to purchase the same at any time during the term for $1,875. After the defendant had taken possession of the lot he erected thereon a wooden dwelling house, two stories high in front, with a shed of one story, a cellar of stone or brick foundation, and a brick chimney. The defendant and his family dwelt in the house from its erection until near the expiration of the lease, when he took the same down and removed all the materials from the lot. The defendant was a carpenter by trade, and he gave evidence, that upon obtaining the lease he erected the building above mentioned with a view to carry on the business of a dairyman, and for the residence of his family and servants engaged in his said business; and that the cellar, in which there was a spring, was made and exclusively used for a milk cellar, in which the utensils of his said business were kept and scalded, and washed, and used; and that feed was kept in the upper part of the house, which was also occupied as a dwelling for his family. That the defendant had his tools as a carpenter, and two apprentices in the house, and a work-bench out-of-doors; and carpenter's work was done in the house, which was in a rough, unfinished state and made partly of old materials. That he also erected on the lot a stable for his cows of plank and timber fixed upon posts fastened into the ground, which stable he removed with the house before the expiration of his lease.
Upon this evidence the counsel for the plaintiffs prayed for an instruction, that if the jury should believe the same to be true, the defendant was not justified in removing the said house from the premises; and that he was liable to the plaintiffs in this action. This instruction the court refused to give; and the refusal constitutes his first exception.