Johnson's Executor vs. Wiseman's Executor.

and 413.) There can be no doubt that, upon the sale of the freehold, fixtures will pass, in the absence of any express provision to the contrary. It has been held in some cases that to give chattles the character of fixtures, and deprive them of that of personalty, they must be so firmly fixed to the realty that they cannot be removed without injury to the freehold from the act of removal, and apart from the subtraction of the thing removed; but, the.better opinion is, however, the other way, and in favor of viewing every thing as a fixture which has been attached to the realty with a view to the purposes for which it is held or employed, however slight or temporary the connection between them. It has accordingly been decided, in a great number of cases, that the machinery of a manufactory is to be regarded as a part of the realty, whether it be attached to the body of the building, or merely connected with the other machinery by running bands or gearing which may be thrown off at pleasure and without injury to the freehold. (Notes to Elwes vs. Mawe, and authorities cited, 2 vol. Smith's Lead. Cases, 249.)

Nor can it be said that actual annexation was so essentially necessary to constitute a fixture, even in the earliest and most technical periods of the common law, as to bear down and overpower all other considerations. The doctrine of heir-looms necessarily implies that chattles may be deprived of their moveable and personal character, and rendered inseparably attendant upon the inheritance, by the force of moral association. It has never been doubted that the keys of a house, or the fences or walls of a farm, are part of the freehold. It was held in Kittridge vs. Wood, (3 New Hamp., 503,) and Parsons vs. Camp, (11 Conn., 525,) that the manure on a farm at the time it was sold vested in the vendee. And these decisions were followed in Goodrich vs. Jones, (2 Hill, 142,) and the purchaser held to be both entitled to the manure and the fences, although the latter had been detached from the soil. (Ib., p. 251-2.)

These authorities are cited to show that the ancient rule, which treated nothing as fixtures except such chattles as were fastened to the realty and were more or less immovable, has

Johnson's Executor vs. Wiseman's Executor.

been modified and moulded to suit the improvements in arts and science of modern times.

In Fairis vs. Walker, (1 Bail., 540,) the plaintiff sold and conveyed his plantation to the defendant, on which cotton was grown, and a cotton gin was in a gin house on the premises attached to the gears. The plaintiff brought trover for the gin; but the court held that it was a fixture, and passed with the freehold; saying, as between heir and executor, or vendor and vendee, all things which are necessary to the full and free enjoyment of the freehold, and in any way attached to it, are held to be fixtures, and pass with it.

In 6 Greenleaf, 157, JUSTICE WESTON said: "Modern times have been fruitful of inventions and improvements for the more secure and comfortable use of buildings, as well as of many other things which administer to the enjoyment of life. Venitian blinds, which admit the air and exclude the sun whenever it is desirable so to do, are of modern use; so are lightning rods, which have become common in this country and in Europe. These might be removed from the building without damage; yet, as suited and adapted to the buildings upon which they are placed, and as incident thereto, they are doubtless part of the inheritance, and would pass by a deed as appertaining to the realty. In Walker vs. Shannon, (20 Wend., 636,) JUSTICE COWEN, with great labor, reviewed the authorities on this point, and came to the conclusion that the machinery in a woolen factory, being moveable, and not in any manner affixed or fastened to the building or land, although material to the performance of the factory in certain parts of its work, was personal property, as between tenants in common and owners of the fee. The question was decided as if it had arisen between vendor and vendee. But in Voorhis vs. Freeman, (2 Watts & Serg., 117,) the case of Walker vs. Shannon, supra, was referred to and disapproved.

The question whether chattles are to be regarded as fixtures depends less upon the manner of their annexation to the freehold than upon their own nature and their adaptation to the purposes for which they are used. (2 Smith's Lead. Cases, 251.)

In Lawrence vs. Kemp, (1 Duer, 363,) the question was be

Johnson's Executor vs. Wiseman's Executor.

tween a landlord and his tenant. A former tenant had put up some gas fixtures and screwed 70 stools to the floor of the demised building, which he had used as a store room, and failed to remove them during his term. After the building had been demised to another tenant, and while he was in possession, the former tenant entered and removed the gas fixtures and stools which he had put in the building, and the landlord brought suit against his tenant in possession for the value of these articles, alleging that he had agreed to deliver the store room with the fixtures therein on a named day. The court held that such articles, when placed by a tenant in a demised building during his term, are his property. If not removed by him during the term, they do not, for that reason, cease to be his property, and he may remove them after his term expires without subjecting himself to any damages for such removal, even though he be liable to an action of trespass for an entry on the demised premises.

The rule which governed this case is, that the claim to have such articles considered as personal property is received with the greatest latitude and indulgence; a very different rule from that which prevails between vendor and vendee, as we have before shown, and the difference in the rules governing destroys the analogy in the two cases.

We have shown, authoritatively, as we think, that the physical annexation of the articles in controversy to the freehold is such as, between vendor and vendee in an ordinary sale without an express reservation of them, would pass them to the vendee. But, in this case, the articles never belonged to Marshall; they were purchased and put up by Johnson after he purchased the house and lot; and the question is, if Marshall had no lien on them, can Buckner, a purchaser under his sale, to enforce his lien, be permitted to hold them?

The sale of the property was doubtless advertised. Buckner, and others desiring to purchase, attended at the time and place. They found these articles in their appropriate places, to be used for the purposes for which they were designed. The representatives of Johnson had not removed them, probably because they regarded them as a part of the freehold.

Jameson vs. Gregory's Ex'r.

There is no proof that Buckner knew that Johnson had placed them there after his purchase. No claim was made to them by Johnson's representatives or those interested in the property, and no objection made to the sale. Purchasers and strangers, seeing them in their appropriate places, and no objections made to the sale, would regard them as a part of the freehold, and would bid for the property with the belief that the acquisition of it would confer upon them the right to these articles, which, from their nature and position, seemed to be incident to and a part thereof, and thereby be induced to bid more than they would otherwise have done.

Buckner, having purchased in good faith and for a valuable consideration, should take the property with the incidents, and in the condition it was in when he purchased. Wherefore, the judgment is affirmed.

CASE 40-PETITION EQUITY-OCTOBER 7.

Jameson vs. Gregory's Ex'r.

Gregory, &c. vs. Jameson,

APPEALS FROM THE KENTON CIRCUIT Court.

1. An agreement to pay for lottery tickets delivered to a party by the managers of a lottery, or return them not sold, made in Delaware, and not prohibited by the laws of that State, and containing no stipulation to do any act in violation of the laws of any other State, is valid; and notes and mortgages executed by such party, in consideration thereof, is enforceable here, although such party may have violated the laws of another State in his disposition of the tickets.

2. In contracts, called "contracts of sale or return," the property in the goods passes to the purchaser, subject to an option in him to return them within a fixed time or in a reasonable time; and, if he fails to exercise this option by so returning them, the sale becomes absolute and the price may be recovered, in an action for goods sold and delivered. (3 Eng. Law and Eq. Rep., 311; 3 Duer, 336; 14 Johnson, 167.)

3. A mere sale in one State or country, made with knowledge that the vendee in

Johnson's Executor vs. Wiseman's Executor.

tween a landlord and his tenant. A former tenant had put up some gas fixtures and screwed 70 stools to the floor of the demised building, which he had used as a store room, and failed to remove them during his term. After the building had been demised to another tenant, and while he was in possession, the former tenant entered and removed the gas fixtures and stools which he had put in the building, and the landlord brought suit against his tenant in possession for the value of these articles, alleging that he had agreed to deliver the store room with the fixtures therein on a named day. The court held that such articles, when placed by a tenant in a demised building during his term, are his property. If not removed by him during the term, they do not, for that reason, cease to be his property, and he may remove them after his term expires without subjecting himself to any damages for such removal, even though he be liable to an action of trespass for an entry on the demised premises.

The rule which governed this case is, that the claim to have such articles considered as personal property is received with the greatest latitude and indulgence; a very different rule from that which prevails between vendor and vendee, as we have before shown, and the difference in the rules governing destroys the analogy in the two cases.

We have shown, authoritatively, as we think, that the physical annexation of the articles in controversy to the freehold is such as, between vendor and vendee in an ordinary sale without an express reservation of them, would pass them to the vendee. But, in this case, the articles never belonged to Marshall; they were purchased and put up by Johnson after he purchased the house and lot; and the question is, if Marshall had no lien on them, can Buckner, a purchaser under his sale, to enforce his lien, be permitted to hold them?

The sale of the property was doubtless advertised. Buckner, and others desiring to purchase, attended at the time and place. They found these articles in their appropriate places, to be used for the purposes for which they were designed. The representatives of Johnson had not removed them, probably because they regarded them as a part of the freehold.