In deciding cases in reference to whether an article is a fixture vel non, the courts invariably refer to the relation, in the particular case, between the persons interested, frequently in such terms as to indicate that this consideration is of importance. They do not, however, ordinarily explain to what extent it may affect the decisions, though occasionally a statement of a general character is made in this regard.

The question whether an article annexed to the land has become legally a part thereof has arisen not infrequently between the owner of land and a trespasser thereon who annexed to the land a chattel owned by him, which he subsequently desires to remove. The general rules as to the effect of annexation in making the chattel a part of the land apply with full force in such a case,84 and the fact that the annexation is made under a mistake as to the ownership of the land has been regarded as imma83. Long v. Cockern, 128 111. 29, 21 N. E. 201; Taylor v. Wat-kins, 62 Ind 511; Hubbell v. East Cambridge Five Cent Sav. Bank, 132 Mass. 447, 42 Am. Rep. 446; Carpenter v. Walker, 140 Mass. 416, 5 N. E. 160; Shepard v Blossom, 66 Minn. 421; Blancke v. Rogers, 26 N. J. Eq. 503; Murdock v. Gifford, 18 N. Y. 28; Potter v. Cromwell, 40 N. Y. 287, 100 Am. Dec. 485; Teaff v. Hewitt, 1 Ohio St. 511, 59 Am. Dec. 634; Hill v. Wentworth, 28 Vt. 428; Kendall v. Hathaway, 67 Vt. 122.

84. Jones v. New O' leans & S. R Co. & I. Ass'n, 70 Ala. 227; Griffith v. Happersberger, 86 Cal. 605, 25. Pac. 137, 487; Mathes v. Dobschuetz, 72 111. 438; Rowand v. Anderson, 33 Kan. 267, 52 Am. Rep. 529; First Parish in Sudbury v. Jones, 8 Cush. (Mass.) 184; Perley v. Cambridge, 220 Mass. 507, 108 N. E. 494; Emrich v. Ireland, 55 Miss. 390; Hunt v. Missouri Pac. R. Co. 76 Mo. 115; Thayer . Wright, 4 Den. (N. Y.) 180; Wentz v. Fincher, 12 Ired. (34 N. Car.) 297, 55 Am. Dec. 416.

Terial.85 A different view has however occasionally been asserted,86 particularly in connection with articles annexed for a public or quasi public purpose, such as the operation of a railway.87

Upon the death of the tenant in fee simple of land, fixtures thereon pass as part of the land to the heir, and the personal representative has no claim thereto, and it has been said that the genera] rule of the common law that what is annexed to the freehold becomes part thereof applies with full force in favor of the heir.88

As between the devisee of land and the personal representative, claiming an article annexed to the land, it has been said that the same principles govern as between the heir and personal representative.89 It is to be observed, however, that the primary question, in determining whether such article passes as included in the devise, is whether the testator intended it to pass, and it is only as an aid in ascertaining this intention that the question whether it is a fixture becomes material. If it is a fixture it is presumed to have been intended to pass under a devise of the land, but the presumption is rebuttable.90

85. Hereford v. Pusch, 8 Ariz. 76, 68 Pac. 547; Seymour v. Wat-eon, 5 Black. (Ind.) 555, 36 Am.

Dec. 566; Dutton v. Ensley, 21 Ind. App. 46, 69 Am. St. Rep. 340, 51 N. E. 380; Burleson v. Teeple, 2 G. Greene (Iowa) 542; Mitchell v. Bridgman 71 Minn. 360, 74 N. W. 142; Climer v. Wallace, 28 Mo. 556, 75 Am. Dec. 135; Stillman v. Hamer, 7 How. (Miss.) 421; Hou-zik v. Delaglise 65 Wis. 494, 56 Am. Rap. 634, 27 N. W. 171.

86. Bingham County Agricultural Ass'n v. Rogers, 7 Idaho, 63. 59 Pac. 931; Guthrie v. McMur-ren, 167 Iowa, 154, L. R. A. 1915 B, 187, 149 N. W. 71; Darnall v. Jones, 24 Ky. L. Rep. 2090, 72 S. W. 1108; Curtis v. Laesia, 78 Mich. 480, 44 N. W. 500; Lowen-berg v. Bernd, 47 Mo. 297; Onsley v. Lambeth, (Mo. App.) 199 S. W. 594; Long v. Cude, 75 Tex. 225. 12 S. W. 827.

87. Jones v. New Orleans & S. R. Co. & I. Ass'n, 70 Ala. 227;

Newgass v. St. Louis A. & T. Ry. Co., 54 Ark. 140; California Southern R. Co. v. Southern Pac. R. Co., 67 Cal. 59, 7 Pac. 123; San Francisco & N. P. R. Co. v. Taylor, 86 Cal. 246, 24 Pac. 1027; Louisville N. O. & T. R. Co. v. Dickson. 63 Miss. 380, 56 Am. Rep. 809; Oregon Ry. & Nav. Co. v. Mosier, 14 Ore. 519, 58 Am. Rep. 321, 13 Pac. 300; Justice v. Nes-quehoning Valley R. Co. 87 Pa. 28; Atchison, etc., R. Co. v. Morgan, 42 Kan. 23, 4 L. R. A. 284, 16 Am. St. Rep. 471; Lyon v. Green Bay & M. Ry. Co., 42 Wis. 538.

88. Henry's Case, Y. B. 20 Hen. VII, 13 pl. 24; Anonymous, Y. B. 21 Hen. VII., 26 pl. 4; Law-ton v. Salmon, 1 H. Bl. 260, note b; Bain v. Brand L. R. 1 App. Cas. 762; Norton v. Dashwood (1896) 2 Ch. 497; Kinsell v. Billings, 35 Iowa, 154; Barnway v. Cobb, 99 Mass. 457; Tuttle v. Robinson, 33 N. H. 104; Hays v. Doane, 11 N. J. Eq. 84.

As between the grantor and grantee of land the question whether an article annexed to the land passes to the grantee is primarily a question of intention. There is a presumption that if, by reason of annexation, the article has become legally a part of the land, it was intended to be included in the language describing the land,91 and it is said that, for the purpose of determining what is part of the land as between grantor and grantee, the same rule applies as between heir and personal representative, that what is annexed to the freehold becomes part thereof.92 But although it is a part of the land, it does not pass by a conveyance of the land if a contrary intention is legally indicated.93

89. Norton v. Dashwood (1896) 2 Ch. 497; Bannerot v. Bannerot, 238 Pa. 606, 86 Atl. 489.

90. See Whaley v. Whaley, (1908) 1 Ch. 615.

91. Stillman v. Flenniken, 58 Iowa, 450, 43 Am. Rep. 120, 10 N. W. 842; Gibbs v. Estey, 15 Gray (Mass.) 587; Tharp v. Allen, 46 Mich. 389, 9 N. W. 443; Wad-leigh v. Janvrin, 41 N. H. 503, 77 Am. Dec. 780; Richtmyer v. Morss, 3 Keyes (N.Y.) 349; Walker v. Sherman. 20. Wend. (N, Y.) 636; Ford v. Cobb, 20 N. Y. 344; Rogers v. Gillinger, 30 Pa. St.

185

92. Harkness v. Sears, 26 Ala. 493, 62 Am. Dec. 742; Sands v. Pfeifer, 10 Cal. 258; Winslow v. Merchants Ins. Co., 4 Metc. (Mass.) 310, 38 Am. Dec. 368; Tate v. Blackburne, 48 Miss. 1; Burnside v. Twitchell 43 N. H. 390; Miller v. Plumb, 6 Cow. (N. Y.) 665, 16 Am. Dec. 456.

93. Hare v. Horton, 5 B & Ad. 715; Pea v. Pea, 35 Ind. 387; Leonard v. Clough, 133 N. Y. 292; Fortman v. Gcepper, 14 Ohio St 558; Straw v. Straw, 70 Vt. 240, 39 Atl. 1C95.

Sec. 270]

Rights of Enjoyment.

A mortgage of land, like an absolute conveyance thereof, is prima facie to be construed as intended to cover articles which have, by annexation, become part of the land.94

Articles annexed to land which is already subject to a mortgage ordinarily become subject thereto as part of the land, and so pass with the land to a purchaser at a foreclosure sale under the mortgage.95 The cases usually state this as if it were a rule of law, but it is rather in the nature of a rule of construction, a rule for ascertaining the intention of the parties to the mortgage. A mortgage on particular land is presumed to be intended to cover anything which may subsequently become, in the eye of the law, a part of the land, but if the parties intend otherwise, such intention, validly expressed, is no doubt effective.

A vendee in possession under a contract of sale, who annexes articles to the land, so as to make them a part thereof, cannot ordinarily remove them, as against the vendor, unless the latter is in default in carrying out the contract.96 The vendee is frequently

94. Meux v. Jacobs, L. R. 7 H. L. 481; Climie v. Wood, L. R. 4 Exch. 328; Cunningham v. Cure-ton, 96 Ga. 489, 23 S. E. 420; Ottumwa Woolen Mill Co. v. Haw-ley, 44 Iowa 57, 24 Am. Rep. 719; Peoria Stone & Marble Works v. Sinclair, 146 Iowa, 56, 124 N. W. 772; Tate v. Blackburne, 48 Miss. 1; Williamson v. New Jersey Southern R. Co., 29 N. J. Eq. 311; McRea v. Central Nat. Bank of

Troy, 66 N. Y. 489; 13 Am. & Eng. Encyc. Law (2nd Ed.) 662.

95. Walmsley v. Milne, 7 C. B. (N. S.) 115; Climie v. Wood, L. R. 4 Exch. 328; Seedhouse v. Broward, 34 Fla. 509, 16 So. 425; Wood v. Whelen, 93 111. 153; Corliss v. McLagin, 29 Me. 115; Hopewell Mills v. Taunton Sav. Bank, 150 Mass. 519, 6 L. R. A. 249, 15 Am. St. Rep. 235, 23 N. E. 327; State Sav. Bank v. Kerchcval, 65 Mo. 682; Dutro v. Kennedy, 9 Mont. 101; Quinby v. Manhattan Cloth & Paper Co., 24 N. J. Eq. 260; Burnside v. Twitchell, 43 N. H. 390; McFadden v. Allen, 134 N. Y. 489, 19 L. R. A. 446, 32 X. E. 21; Johnson v. Pacific Land Co., 84 Ore. 356, 164 Pac. 564; Witmer's Appeal, 45 Pa. St. 455; Muehling v. Muehling, 181 Pa. 483, 59 Am. St. Rep. 674, 37 Atl. 527; Cutler v. Keller, 88 Wash. 334, 153 Pac. 15.

96. Brannon v. Vaughan, 66 Ark. 87, 48 S. W. 909; Ogden v. Stock, 34 HI. 522, 85 Am. Dec.

Real Property.

[Sec. 271 said to be, in this regard, in a position similar to that of a mortgagor of land.