In Davis v. Moss, 38 Penn. St. 346, 353, it is said by Mr. Justice Woodward that "if a tenant remain in possession after the expiration of his term, and perform all the conditions of the lease, it amounts to a renewal of the lease from year to year, and I take it he would be entitled to remove fixtures during the year." This in our opinion is perfectly reasonable, and it is as applicable to other tenancies as it is to those from year to year which are implied from mere permissive holding over. * * *
We think the decree below was correct, and it must be affirmed with costs.
1 Wharton (Pa.), 91. - 1835.
Action for rent by Abraham Arndt against William White.
Jacob Arndt devised the premises in question to his wife for life, remainder in fee to this plaintiff. Mrs. Arndt remarried, and together with her husband, in July, 1829, leased the premises to White for a term of three years. The life tenant died in December, 1829. White continued in possession of the premises until April 1, 1832. This action is for the last quarter's rent.
On the trial White offered to prove that he had erected certain buildings upon the premises under an agreement with the life tenant that he should have liberty to remove some of them and that the others should be taken by the owners of the land at a valuation, etc. Under objection, this evidence was excluded. Arndt sold the premises at public auction in February, 1832. White offered to prove that at time of the sale he desired to give notice of his claim to the buildings, which Arndt would not permit. Excluded. Verdict for plaintiff below. White brings the case on error to this court.
Rogers, J. - It is a general rule of the common law, that whatever is annexed to the inheritance during the tenancy, becomes so much a part of it, that it cannot be removed by the tenant, although the improvements may have been made at his own expense. As in Warner v. Fleetwood, 4 Rep. 63, glass put in by the tenant, or wainscot fastened by nails, was held part of the inheritance. To this rule there are certain exceptions, nearly as old as the rule itself, as between landlord and tenant, that whatever buildings or other fixtures are erected for the purpose of carrying on trade or manufactures, may be removed by the tenant during the term. The cases upon this subject are collected by Lord Ellenborough, in Elwes v. Mawe, 3 East, 38, and by Mr. Justice Story, in Van Ness v. Packard, 2 Peters' Rep. 145. As to substantial improvements, they are usually made a consideration for extending the term of the lease; or some collateral agreement is made, so as to allow of some compensation to the tenant. The latter was the course adopted by the parties to this contract. The tenant, White, erected on the premises several improvements, among which was a stable, and two shops, which it is said greatly enhanced the value. It was agreed at or about the time of the erection of these improvements, between White and Mr. and Mrs. Lloyd, who had an estate for life, that White was to have the liberty of selling or removing the stable, and that the barber's shop, and other small buildings erected by him were to be taken at a valuation; and that if a valuation should not be agreed on, White was to have the privilege of removing the materials of the shops. As between the parties to this contract, this agreement was a good consideration; and any violation of it on the part of Lloyd would have subjected him to an action. And I am inclined to believe, on the authority of Van Ness v. Packard, that if the estate of Lloyd had continued until the end of the term, White would have had a right to remove the buildings from the premises, without the consent of the owner of the remainder notwithstanding the general principle, that whatever is annexed to the freehold, becomes part of it, and cannot afterwards be removed, except by him who is entitled to the inheritance. The exception in favor of trade, which is founded on public policy, and intended to encourage manufactures and the improvements of the country, may well apply to this case; for the question does not depend upon the size or form of the house, or the manner in which it is built; but the only inquiry always is, whether it was intended for purposes of trade or not; and I cannot believe that the nature of the business, whether agricultural or mercantile, can make any difference. But while these principles are conceded, I am unwilling to extend them beyond the duration of the estate which the tenant for life has in the premises, so as to subject the owner of the fee to payment for the buildings, or to compel him to allow them to be removed. In the case at bar, Lloyd's interest was in right of his wife, who had a life estate. On her death, the interest in possession vested in Arndt, the owner of the remainder in fee.
The death of Mrs. Lloyd put an end to White's lease. Now, there is no principle better established by authority, than that, even, as between landlord and tenant, fixtures must be removed during the term. After the term they become inseparable from the freehold, and can neither be removed by the tenant, nor recovered by him as personal chattels, by an action of trover, or for goods sold and delivered. 1 Atk. 477; Ex parte Quincy, 3 Atk. 13; Lamb v. Lamb, and the note, 2 Peters' R.; Lord Dudley v. Lord Ward, Ambl. 113; Co. Lit. 53a; Brooke, Waste, 104, 142; Coopers Case, Moore, 177; Day v. Disbitch, Cro. E. 374; L.ord Derby v. Asquith, Hob. 235; 4 Term Rep. 745; 7 Term Rep. 157.
It has been contended by the counsel for the plaintiff in error, that the tenant for life can bind the remainderman by contract, so as to compel him either to pay for improvements which enhance the value of the property, or to permit them to be removed when it can be done without injury to the inheritance. For this position, they rely on Whiting v. Brastow, 4 Pickering, 310, in which it is ruled, that a tenant for life, years, or at will, may at the determination of his estate remove such erections, etc., as were placed on the premises by himself, the removal of which will not injure the freehold, or put the premises in a worse plight than when he entered. In Whiting v. Brastow, the tenant removed a padlock used for securing a bin-house, and movable boards fitted and used for putting up corn in bins. That was a case between landlord and tenant, and not between tenant for life and the remainderman; the rule being that, as between the latter, in questions respecting the right to what are ordinarily called fixtures, as between tenant for life or in tail and the remainderman or reversioner, the law 'is considered more favorable than between landlord and tenant. It is construed most strictly between the executor and heir, in favor of the latter; more liberally between tenant for life, or in tail, and the remainderman, or reversioner, in favor of the former; and with much greater latitude between landlord and tenant, in favor of the tenant. A distinction arises, also, between the cases, from the nature of improvements. In Whiting v. Brastow, the court treated the improvements as personal chattels; but this cannot be said of these erections, which are of a permanent, substantial kind, and which surely would not have gone to the executors of Mrs. Lloyd, if the buildings had been erected by her. It would have been waste in the tenant to have removed them; for it is in general true, that when a lessee having annexed anything to the freehold, during his term, afterwards takes it away, it is waste. Co. Lit. 53; Moore, 177; 4 Co. 64; Hob. 234.