Sands v. Pfeiffer

Field, J., after stating the facts, delivered the opinion of the Court Terry, C. J., concurring.

The material questions for consideration are: first, whether the machinery in controversy was so fixed to the real property as to pass by the sheriff’s deed; and, second, if so, whether upon its severance it became personal property so as to be recoverable in the present action.

[264]The general rule of law is, that whatever is once annexed to the freehold becomes parcel thereof, and passes with the conveyance of the estate. Though the rule has been in modern times greatly relaxed, as between landlord and tenant, in relation to things affixed for the purposes of trade and manufacture, and also in relation to articles put up for ornament or domestic use, it remains in full force as between vendor and vendee. As a general thing, as tenant may remove what he has added, when he can do so without injury to the estate, unless it-has become by its manner of addition an integral part of the original premises. (2 Kent, 348; 1 Parsons on Con., 431, and cases cited in note.) But not so a vendor; as against him all fixtures pass to his vendee, even though erected for the jmrposes of trade and manufacture, or for ornament or domestic use, unless specially reserved in the conveyance. Thus, potash kettles, appertaining to a building for manufacturing ashes, (Miller v. Plumb, 6 Cow., 665;) a cotton-gin, fixed in its place, (Bratton v. Clawson, 2 Strob., 478;) a steam-engine, to drive a bark-mill, (Oves v. Ogelsby, 7 Watts, 106;) kettles set in brick, in dyeing and print-works, (Dispatch Line of Packets v. Bellamy Company, 12 N. H., 207; Union Bank v. Emerson, 15 Mass., 159;) iron stoves fixed to the brick-work of chimneys, (Goddard v. Chase, 7 Mass., 432; )and wainscot-work, fixed and dormant tables, are hold to pass to the vendee under a conveyance of the land.

In Elwes v. Maw, (3 East, 38,) Ellenborough says that questions respecting the right to fixtures, principally arise between three classes of persons: first, between the heir and executor; second, between the executors of tenants for life or in tail, and the remainderman and reversioner; and, third, between landlord and tenant; and observes that “as between heir and executor the rule obtains with the most rigor in favor of the inheritance, and against the right to disannex therefrom, and to consider as a personal chattel anything which has been affixed thereto;” and Mr. Justice Story, in Powell v. Monson and Brimfield Manufacturing Company, (3 Mason, 465,) after stating the general rule that whatever is once annexed to the freehold, becomes parcel thereof, and can not be afterwards severed but by him who is entitled to the inheritance, remarks, that “ as between heir and executor, the rule has never been relaxed, unless the case of the cider-mill, cited in Lawton v. Lawton, (3 Atk., 13,)is an exception, which may, perhaps, as the note there suggests, have turned upon a custom, or, as Lord Ellenborough, in Elwes v. Maw, (3 East, 38,) considers it, may be deemed a mixed case between enjoying the profits of land, and carrying on a species of trade.”