Doty v. Gorham, 5 Pickering, 487, merely decides that a shop placed on the lands of the plaintiff, with his permission, was a chattel, and as such may be sold, on an execution against the owner, and that the purchaser has a right to enter on the land and remove the shop. This principle it is not necessary to controvert, as the application of it is not perceived.
It must be remarked, that the agreement does not purport to bind Arndt, the owner of the remainder in fee, and seems to have been made under the belief and with the wish, that the life interest would last as long as the lease, which was but for three years. But if the intention were to bind him, the objection arises, that it is not competent for them to make an agreement, to affect the inheritance.
On the falling in of the particular estate, the remainderman or reversioner is entitled to all the improvements, which the law denominates fixtures, without regard to the manner they are constructed, the persons who may have erected them, or whether they may contribute to enhance the value of the property or not. If the tenant for life, or the person with whom he contracts, wishes to avoid the consequences, the improvements must be removed during the continuance of the first estate; or the assent of the remainderman, or reversioner, must be obtained. There is nothing which shows any assent to the agreement by Arndt. The deposition of Lloyd proves nothing further than that the rent was made known to Arndt, and that he made no objection against White being the tenant for the remainder of the lease. But not a word was said, so far as appears, about this agreement. It is in general true, that where there is a lease for years, and by consent of both parties the tenant continues in possession afterwards, the law implies a tacit renovation of the contract. But that principle cannot fairly be made to apply to this case; for here, although the lease terminated at the death of Mrs. Lloyd, and the tenant continued in possession with the consent of Arndt, yet that would bind the parties to nothing more than what came within the terms of the lease. It would not include the case of a collateral agreement, independent of the lease itself. The agreement on which this case turns, was a collateral agreement, of which it does not appear that Arndt was in any manner apprized, or to which there is not the slightest evidence he assented, either directly, or by necessary implication.
VI. Manure as incident to land.
I. Agricultural Lands.
a. As between vendor and vendee and heir and executor.
(I.) The General Rule.
2 Hill (N. Y.), 142. - 1841.
[Reported herein at p. 255.]
13 Gray (Mass.), 53. - 1859.
Action of contract on the probate bond of Elizabeth Muzzey, as administratrix of Benjamin Muzzey, deceased, brought by the administratrix de bonis non of said Benjamin. The administratrix was to be charged with two items for the value of certain manure unless this court should think, as matter of law, that she should not be chargeable therewith. The further facts appear in the opinion.
Hoar, J. - 1. The court are of opinion that manure from the barnyard of the homestead of the intestate, standing in a pile upon his land, although " not broken up nor rotten, and not in a fit condition for incorporation with the soil," is not therefore assets in the hands of his administratrix, and that she is not chargeable therewith as a part of his personal estate. Manure, made in the course of husbandry upon a farm, is so attached to and connected with the realty, that, in the absence of any express stipulation to the contrary, it passes as appurtenant to it. This has been so decided as between landlord and tenant, in the cases of Daniels v. Pond, 21 Pick. 367; Lassell v. Reed, 6 Greenl. 222, and Middlebrook v. Corwin, 15 Wend. 169. The reason of the rule is, that it is for the benefit of agriculture; that manure, which is usually produced from the droppings of cattle or swine fed upon the products of the farm, and composted with earth or vegetable matter taken from the soil, and the frequent application of which to the ground is so essential to its successful cultivation, should be retained for use upon the land. Such is unquestionably the general usage and understanding, and a different rule would give rise to many difficult and embarrassing questions.
The same doctrine was applied, as between vendor and vendee, in Kittredge v. Woods, 3 N. H. 503, and in Goodrich v. Jones, 2 Hill (N. Y.) 142. The doctrine as to fixtures and incidents to the realty is always most strictly held, as between heir and executor, in favor of the heir, and against the right to disannex from the inheritance whatever has been affixed thereto. Elwes v. Mawe, 3 East, 51.
The circumstance that a thing is not permanently affixed to the freehold, but is capable of detachment, and is even temporarily detached from it, is not conclusive against the right of the owner of the land. Thus keys of doors go to the heir, and not to the executor. Wentworth on Executors, 62; and in Goodrich v. Jones, ubi supra, it was held, that fencing materials, which have been used as a part of the fence, accidentally or temporarily detached from it, without any intent of the owner to divest them permanently from that use, do not cease to be a part of the freehold, In Bishop v.
Bishop I Kernan, 123, the same principle was applied to the case of hop poles, which had been taken up and laid in heaps for preservation through the winter; and it was held, that they would pass by a conveyance of the land.
2. The manure from the hotel stable, which is agreed to have been personal estate, and was included in the inventory, must be accounted for by the administratrix; and it is no sufficient account to say that she has expended it upon the real estate which has since been sold for the payment of debts. There Is no way in which it can be made certain that it has increased the amount received from the sale of the real estate; and it this were established, an administrator has no right thus to expend the personal property of her intestate. * * *