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McAlister, J., delivered the opinion of terial was not especially designed for that the court:

particular house, but could be utilized in any other residence. The plaintiff lived on the property at the time the trust deed was executed, and continued to occupy it until after the foreclosure sale. It further appears that in the deed from the trustee to the purpurchaser said material was not mentioned, nor was it mentioned in the trustee's advertisement of the foreclosure sale. There is evi

dence tending to show that plaintiff at all times claimed this material, and after the first sale gave notice to the purchaser, McDougal, that he claimed it. It is also shown that he notified the trustee before the sale not to sell this material, and claimed it as his property. It further appears that, about a year after L. F. Gunn went into possession of the premises under his purchase from McDougal, he used said material which he found stored in the building for the purpose of completing it. Thereupon the plaintiff, Barney Blue, who was the original mortgagor, and had purchased this material and left it in the building, brought suit to recover the sum of $148, the value of said material. There was a verdict and judgment in the court below in favor of the defendant. The plaintiff appealed and has assigned

The question to be solved on this record is whether or not certain doors, mantels, casings, columns, etc., deposited in a building for the purpose of annexation, but which, as a matter of fact, were never physically attached to the building, passed to the chaser under a mortgage sale of the premises.

The facts revealed in the record are that plaintiff and wife on the 17th day of June, 1901, executed a deed of trust on certain real estate to James T. Dunn, trustee, to secure an indebtedness to one D. E. Rose, for the sum of $1,000. There was a foreclosure of this trust deed, and the property was pur chased by M. S. McDougal for the sum of $2.100. The latter sold the property in a short time thereafter to the defendant, L. 1. Gunn. It appears that when the property was first mortgaged a house had been erected upon the premises, which was not entirely finished. Prior to the sale by the trustee, the plaintiff mortgagor had bought certain finishing material, and deposited it in a room of the building on the second floor. The material consisted of doors, mantels, casings, columns, corner beads, etc., which had been ordered with the intention of being used in this house, but none of it was attached in any way to the building.

It further appears that this finishing maattempt has been made to have movable articles, declared fixtures because of mere intention to annex them to the freehold when they have never been actually attached, as was done in BLUE V. GUNN, and BYRNE V. WERNER. This has been termed mere ideal annexation, and, if it may be said to be a species of constructive annexation, it marks the utmost limit that doctrine has reached.

The roller mill cases have furnished an interesting contribution to the subject. In Voorhis v. Freeman, 2 Watts & S. 116, 37 Am. Dec. 490, the question was whether a number of detached rolls which were part of the machinery of an iron rolling mill were fixtures. The rolls included among their number several duplicates but all of them had at one time or another been in actual operation, so that it was impossible to say which were proper members of the set and which were supernumeraries. "But even if that could be told," says the court, "all might. nevertheless, be deemed a part of the mill, seeing that they are often broken, and cannot be instantly replaced if they are not kept ready ou hand." It was held that even the duplicates were part of the realty. The court gives the following curious reason as the ground for its decision: "In Pennsylvania, where a statute directs that real estate shall not be sold on execution before the rents, issues, and profits shall have been found by an inquest insufficient to satisfy the debt in seven years, not only might this conservative provision be evaded, but a cotton spinner, for instance, whose capital is chiefly invested in loose machinery, might be

errors.

The disputed question of law is whether said material passed, under the mortgage

suddenly broken up in the midst of a thriving business, by suffering a creditor to gut his mill of everything which happened not to be spiked and riveted to the walls, and sell its bowels, not only separately, but piecemeal."

This is perhaps the first instance, says the court, in Teaff v. Hewitt, 1 Ohio St. 530, 59 Am. Dec. 634, supra, in which movable property was, by constructive annexation, adjudged parcel of the realty for the avowed reason that it ought to be placed beyond the convenient reach of creditors. Nevertheless a similar reason was advanced in the case of Patton v. Moore, 16 W. Va. 428, 37 Ain. Rep. 789.

In Pyle v. Pennock, 2 Watts & S. 390, 37 Am. Dec. 517, extra rolls of an iron rolling mill, some of which were in housings and some of which had been used, but had been removed from buildings in which they had been accustomed to run, and were not in any way connected therewith, were held to be part of the realty. It does not appear from the report of this case whether any of the detached rolls in question had never been ûtted or used in the mill.

In the later case of Johnson v. Mehaffey, 43 Pa. 308, 82 Am. Dec. 568, the issue was squarely presented, and it was held that rolls cast for a rolling mill and paid for and delivered beside it. where they had lain for two or three years in a rougn, unfinished state, did not pass on a sheriff's sale of the realty. The court said: | "Do the rolls go with the mill to the purchaser? The test question is, Were they elementary parts of the mill at the time of the sale? And, as matter of fact, it is quite plain that they were

sale, as fixtures, or whether it remained the personal property of the original mortgagor, As already stated, said material was not mentioned in any of the various conveyances of the property, and there was no physical attachment of said material to the building; and, while this material was originally pur-realty, becomes accessory to it, and a part

and parcel of it." 13 Am. & Eng. Enc. Law, 2d ed. p. 596.

chased to be affixed to this building, it was commercial finishing, carried in stock by dealers, and could have been used on other buildings.

It thus appears that annexation is the controlling element in the very definition of a fixture, and we find, on examination, that the overwhelming weight of authority in this country is that the physical annexation of a chattel to the realty is necessary in order to render it a part of the realty. See cases cited in.13 Am. & Eng. Enc. Law, 2d ed. p. 600.

While the question thus presented is of first impression in this state, so far as we are advised, it seems to have been settled as a matter of legal controversy in many other states. The question of what constitutes a fixture has usually arisen in cases where the article, appurtenance, or material has been affixed to the freehold, and the But the question as to the necessity of acquestion for determination in that class of tual attachment has also arisen as to arcases was whether the fixture could be de- ticles which have not been annexed to the tached from the freehold; the solution of land, but have merely been brought on or that question being dependent generally near to the land with the intention of annexupon the intention of the parties in annex-ing them. The great weight of authority is ing it, and whether the right of removal that such articles are still to be considered had been reserved. This phase of the ques- as chattels. Rails lying on the land, and not tion was fully considered by this court at yet placed in a fence, have been held to be the present term in the case of Union Bank personalty. Thweat v. Stamps, 67 Ala. 96: & T. Co. v. Fred W. Wolf Co. 86 S. W. 310, Robertson v. Phillips, 3 G. Greene, 220: in an elaborate opinion by Judge Neill. Harris v. Scovel, 85 Mich. 32, 48 N. W. 173. But, as already observed, the question pre- So of lumber intended for a building. Carsented by this record is whether an article kin v. Babbitt, 58 N. H. 579. So windows which has been deposited upon the premises and window blinds made to be used in a with a view of annexation, and for the pur-house, but not actually put in place and

not; for the mill had always run without them.
No doubt they were intended to be made a part
of the mill; but we do not see how we can take
the intention, without fact, in order to declare
what constitutes the mill.
And, if
mere intention could aflix such articles to the
realty, then a mere change of intention would
unfix them, or prevent their becoming affixed,
and we should thus be without any rule at all to
guide us. Besides, it is rather a contradiction
in terms to say, at the same time, that they are
parts of the structure, and are intended to be
made so.
That these rolls will fit no other mill
does not make them part of this one, or prove
them so.
The rolling mill, consist-
ing of all its constituent parts, as it was actu-
ally constructed and used at the time of the
sale, is all that passed by the sale; and there-
fore these rolls were not included.”

The two earlier cases in the state were not referred to in the opinion.

So, in England loose duplicate rolls of a fixed rolling mill machine and detached rolls of different sizes for use in the machine, and which had been actually fitted to it, are essential parts of the machine; but rolls that have never been used in, or fitted to, the machine, which require something more to be done to them before they are fitted, are not essential parts of it. Ex parte Astbury, L. R. 4 Ch. 630.

pose of finishing a building, thereby becomes a part of the realty, in such a sense that it passes under the deed to the purchaser.

The definition of a fixture usually given is, "An article which was a chattel, and which, by being physically annexed or affixed to the

As to other machinery, it was held, in Patton v. Moore, 16 W. Va. 428, 37 Am. Rep. 789, that an engine and boiler, bought by the owner of a mill, and hauled into the yard with the bona fide intention of attaching them to the

mill, and which were necessary for the purpose for which they were to be used, must be regarded as part of the realty, and not liable to the levy of an execution as personal property. The reason given for the decision was that persons involved in any degree would not have much encouragement to erect permanent improvements; that they might have all their arrangements made to build, their contracts made, the material all on the ground, and that the whole scheme might then be frustrated, and irreparable loss be inflicted by the levy of an execution on the materials thus collected on the ground.

The Patton Case was cited and followed in McFadden v. Crawford, 36 W. Va. 671, 32 Am. St. Rep. 894, 15 S. E. 408. In the latter case a rolling mill company had purchased two railroad spike machines to be attached to its mills. The machines had been shipped on a car which had been run in on a railroad switch belonging to the mill company upon its grounds. The foundation had been prepared to receive the machines, and one of them had been unloaded. and the other was still on the car, but had been partially moved, when they were levied on as personal property. The court held that they were not liable to seizure and sale as personal property.

In Iowa a steam engine and other machinery for a mill do not become a fixture so as to defeat the lien of a chattel mortgagee as against a holder of a prior vendor's lien on the land, although it was purchased to be annexed, and it Was the intention to annex it, and it was

fastened, nor otherwise annexed to it, are Eng. Enc. Law, 2d ed. p. 605: "Of the articles held not to be a part of the realty. cases treated as illustrations of constructPeck v. Batchelder, 40 Vt. 233, 94 Am. Dec. ive annexation, some are merely cases of 392. So of a stone brought within a door- temporary severance, in which the articles, yard to be placed as a doorstep. Wood- though not at the time actually attached, man v. Pease, 17 N. H. 282. And so of ma are treated as still annexed and part of the chinery and parts thereof. Miller v. Wil-realty; and the term has been at times apson, 71 Iowa, 610, 33 N. W. 128; Burnside plied to deer in a park, fish in a pond, and v. Twitchell, 43 N. H. 390. So the rolling doves in a dovecote, which passed to the stock of a railroad is held not to be treated heir, and not to the executor." as realty. In Williamson v. New Jersey Southern R. Co. 29 N. J. Eq. 311, it was said: "The criterion above stated, of actual annexation to the freehold as a rule for determining when chattels become part of the realty, is as well settled in this state as any other rule of property. Exceptions founded on financial and groundless distinctions only tend to produce uncertainty and confusion in the rules of property, which should be permanent and uniform. Tested by the foregoing criterion, it is manifest that the rolling stock of a railroad must be regarded as chattels which have not lost their distinctive character as personalty by being affixed to and incorporated in the realty."

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It remains to notice several cases decided by this court which are supposed to illustrate the policy of our laws upon this subThere are authorities which hold a con- ject. They are cases in which furnishers of trary doctrine, being based on the theory material for a building are allowed a lien on that material deposited on the land for the the lot upon which the building is to be purpose of becoming a part thereof, or ma-erected, whether the material was ever acchinery deposited in a house for the purpose tually used or not. In Daniel v. Weaver, of being attached thereto, is, in the eye 5 Lea, 393, this court said it is not the actual of the law, constructively attached thereto. use of the lumber in repairs to a building by But, as said by the author in 13 Am. & the owner tha gives the furnisher a lien, but

delivered on the ground for that purpose, and although work had been begun for the purpose and with the intention of annexation; where all the machinery was lying on the ground near the mill, or in it, but where none of it had been put in place. Miller v. Wilson, 71 Iowa, 610, 33 N. W. 128.

And in New Hampshire the mere fact that saws which have been kept in a mill for a year or more, and never attached, were purchased with the intention to be used as a part of the mill, is not sufficient to make them fixtures; but other saws, which have been set and used in the mill. are part of the real estate. Burnside v. Twitchell, 43 N. H. 390.

b. Materials for use, repair, or reconstruction of railroads.

In Illinois materials provided for and designed to be attached to a railroad are, for the purpose of a mortgage or conveyance, a part of the real estate itself. Palmer v. Forbes, 23 III. 301. In this case the controversy was be tween mortgagee and execution creditor, and the property in dispute was certain car wheels. car axles, a quantity of locomotive ties, and miscellaneous iron and fuel oil. The court said: "We are of opinion that the rolling stock, rails, ties, chairs, spikes, and all other material brought upon the ground of the company encumbered by the mortgage, and designed to be attached to the realty, should be considered as a part of the realty, and encumbered by the mortgage as such; but fuel oil, and the like,

This class of cases was discussed in Williamson v. New Jersey Southern R. Co. 29 N. J. Eq. 311, in which it was said: "The illustrations of doves in a cote, deer in a park, and fishes in a pond are entirely inapplicable to the present subject. They go with the inheritance, for special and peculiar reasons. In Amos & Ferard on Fixtures, they are classified under the head of heirlooms, a class of property entirely distinct from fixtures." See also Hoyle v. Plattsburgh & M. R. Co. 54 N. Y. 315, 13 Am. Rep. 595.

which are design for consumption in the use and which may be sold and carried away, and used as well for other purposes, as in the operation of the road, and, when taken away, have no distinguishing marks to show that they were designed for railroad uses, cannot, we think, with any propriety, be treated or considered as anything but personal property, and subject to, and governed by, the law applicable to such property." One of the judges of the court dissented as to the opinion that rails, chairs, spikes, and ties, drawn upon and not attached to the road, but intended to be so, savored of the realty, or passed with it, by conveyance.

In Wyatt v. Levis & K. R. Co. 6 Quebec Law Rep. 213, it was held that railroad fastenings and sleepers on hand for the repair of the road were not immovables by destination under article 379 of the Code, which reads as follows:

"Movable things which a proprietor has placed on his real property, for a permanency, or which he has incorporated therewith, are immovable by their destination so long as they remain there. Thus within these restrictions, the following and other like objects are immovable; (1) Presses, boilers, stills, vats, and tuns; (2) all utensils necessary for working forges, paper mills, and other manufactories; manure, and the straw and other substances intended for manure, are, likewise, immovable by destination."

In Covey v. Pittsburg, Ft. W. & C. R. Co. 3 Phila. 173, the question whether old and new rails, and rail chairs, lying along the track

the furnishing under the contract for that use; and the lien exists whether the lumber was used or not. That case involved a construction of Shannon's Code, § 3531, establishing a mechanic's lien and furnisher's lien on any lot of ground or tract of land upon which a house had been erected, built, or repaired, or fixtures or machinery furnished or erected, or improvements made by special contract with the owner or his agent, in favor of the mechanic or undertaker, founder, or machinist who does the work, or any part of the work, or furnishes the materials, or any part of the materials, or puts therein any fixtures, machinery, or material, either of wood or metal, and in favor of all persons who did any portion of the work or furnished any portion of the material for the building contemplated in this section. Section 3539 provides: "The lien shall include the building, fixture, or improvement, as well as the lot or land, and continue for one year after the work is finished or materials are furnished." The court, in dealing with these two sections, held that it is the furnishing of the lumber for repairs, etc., that creates the lien; and that it does not depend upon the use of it by the purchaser whether the seller shall have a lien. Otherwise, by not using it for a year, the owner could entirely defeat the lien of the purchaser. Such is not the proper construction of said acts, and this is made more clear by the provision in § 3539 that the lien shall continue for one year "after

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ir readiness for repairs or reconstruction, are fixtures, was raised, but not decided; the court taking the position that such property is not liable to seizure and sale on execution for an ordinary debt on the ground of public policy. But the court said that, independently of the public purpose for which they were used, doubtless they were liable to seizure.

c. Building materials.

The attempt to have building materials that have never been attached to the freehold declared fixtures seems to have been generally unsuccessful.

In Tripp v. Armitage, 4 Mees. & W. 687, it appeared that wooden sash frames intended to be annexed to a hotel building were delivered on the premises by the contractor, where they were duly approved and returned to him for the purpose of having iron pulleys belonging to the hotel owners affixed. While the frames were in his shop he went into bankruptcy. The owners of the hotel claimed the property under the terms of their contract with the builder as work actually done and fixed, but it was held that it passed to the assignee.

the work is finished," in favor of the workman, or "materials are furnished," as to the furnisher: The furnisher may, therefore, within one year after he has delivered the materials contracted for, have his remedy by attachment to enforce his lien.

In King v. Hedges, 1 Leach, C. L. 201, a prisoner was indicted for stealing six light, giazed window sashes. The window frames from which they were taken were fixed in their proper places, but the sashes were neither hung nor beaded in the frames, but were fastened in by laths nailed across the frames to prevent

The case of Halley v. Alloway, 10 Lea, 523. was another case involving the furnisher's lien for repairing and furnishing the Grand Opera House in the city of Nashville. The question presented for determination in that case was whether the things claimed to have been furnished entitled the furnisher to a lien on the house and lot. The material furnished consisted of stage machinery, such as pulleys, rollers for cylinders, etc., used for fitting up the stage,—some attached and some not,-chairs furnished and fitted to the floor, and seats for the accommodation of the audience, painting the scenery, curtains, and the like. The court held the nature of the thing done and the character of the house repaired, and for which the materials were furnished, as well as the intent of the party building, served to guide to the correct conclusion as to whether the work done was work done on the house, and became part of it. These elements are better guides than the old idea as to fixtures, which was wheth er the thing was permanently attached and fixed in or to the freehold. In getting up a theater, the whole building, considered in reference to its use, makes the house contracted for. All that serves to complete and furnish such house for the purpose designed their falling out. The court held that they were not fixed to the freehold.

In Cook v. Whiting, 16 Ill. 480, it was held that hewed timbers provided and intended for a granary, and lying on the ground at the time it was sold, did not pass to the vendee. The court, conceding the vendee to be strictly protected and entitled to all that in law belongs to the land, said that, after doing this in the most extended sense, it was unable to include these timbers as fixtures becoming part of the land.

In Banfill v. Twyman, 71 Ill. App. 253, Affirmed in 172 l. 123, 49 N. E. 985, it ap peared that a purchaser of land at sheriff's sale claimed a quantity of brick and other building materials that had been brought upon the premises for the purpose of replacing a building destroyed by fire. Operations having been suspended by the financial embarrassment of the owner of the land, the materials in question had previously been sold by the sheriff under an execution as personal property. The purchaser of the premises claimed the materials as constructively annexed to the land, but the evidence showed that he had impliedly consented to the prior sale. The court said that it might be assumed that, where one brings a quantity of material on his land for the purpose of building a permanent structure, there is. constructively, an annexation of the chattels to the realty, and that, were the owner to sell the land while matters were in that stage. the buyer would take the whole; but held that

case.

makes up the house, and is part of it when | with which we are dealing in the present completed. Scenery, seats, pulleys, etc., and the like, make up a necessary part of a building designed for theatrical exhibitions, as much as do the counters on which goods are exposed for sale in a retail mercantile store. It is probable the scenery and other articles herein mentioned are as permanently attached to and were a part of the building as such counters.

In Steger v. Arctic Refrigerating Co. 89 Tenn, 453, 11 L. R. A. 580, 14 S. W. 1087, it was held that statutes creating liens upon real estate in favor of those who, under contract with the owners, have furnished lumber or materials for erection of buildings, machinery, etc., thereon, are construed liberally in favor of lienholders, as regards the subject-matter to which the lien should attach. In that case it appears that the Arctic Refrigerating Company erected a factory on a lot in Nashville for the manufacture of vapor for cold storage. By permission of the city this company laid subterranean pipes in the streets, connecting with its factory, to convey the vapor to its customers. P. supplied labor and materials in the erection of the factory, and also furnished and laid down the pipes in the streets. It was held that the plant, including lot, factory, pipes, etc., is an entirety, ard P.'s lien for materials furnished or labor done upon any part of it attached to the whole.

The case last cited, it will be observed, does not even remotely touch the question the plaintiff could not recover because there had been a severance of the property by legal proceedings, with the implied consent of the parties themselves.

In Indiana clapboards, piled upon land at the time it is sold and intended for general repairs, do not pass with a deed to the land. Hinkle v. Hinkle, 69 Ind. 134.

In Woodman v. l'ease, 17 N. H. 282, the court held that a chattel fit to be annexed to the freehold, and which has been brought upon it with the intention on the part of the possessor to annex it, does not become a fixture, unless actually annexed or placed in position in which it is intended to be used, and in which it is adapted for use. The court, however, did not take the position that actual an nexation is necessary to constitute a fixture, stating that the term might embrace other things than such as are denoted by the word in its strict etymological sense. The question in the case was whether a stone which had been quarried and brought onto the land for the purpose of being fitted and used at some future time in a doorstep passed, while in this condition, to the vendee upon a sale of the land. The court decided that it did not.

Blinds intended for a house, but not painted, and not hung on the house to remain as part of it, do not become annexed to the house so as not to be liable to seizure under an execution against the property of the builder by whom they were furnished, although the blinds have been fitted to the windows, marked with

In the case of Grosvenor v. Bethell, 93 Tenn. 579, 26 S. W. 1096, one of the objects of the bill was to determine whether or not Bethell, the purchaser at first mortgage sale, thereby acquired title to all the theater furniture and fixtures; the same not having been specifically mentioned. It was held that a mortgage by an incorporated opera house company, made after the purchase of lot, and while the theater buildings were in course of erection thereon, conveying the lot and "all the buildings and improvements thereon or to be erected thereon," operates to pass all furniture, fixtures, and furnishings then or thereafter placed in the theater building, and essential to its successful operation; citing Halley v. Alloway, 10 Lea, 523, as settling this question.

In Grewar v. Alloway, 3 Tenn. Ch. 584, it was held that the rollers, pulleys, etc., for shifting scenery, and other stage properties, were fixtures or machinery, within the meaning of the mechanic's and furnisher's lien act. It was further said that the movable machinery and flying stages of a theater, necessary for the purpose of theatrical exhibitions, are trade fixtures, and removable by the tenant, as between him and his landlord, but, as between the owner and mechanic, are subject to the mechanic's lien law. The question whether a thing is a fixture or not, as between owner and mechanic, depends little upon the mode of annexation. Its fitthe number corresponding with their respective windows, and the work of painting them has been actually begun. Manchester Mills ▼. Rundlett, 23 N. H. 271.

In Louisiana bricks and lumber, lying on the premises and intended to be used for a new building, do not form part of the realty under article 468 of the Civil Code, which provides that "materials arising from the demolition of a building, those which are collected for the purpose of raising a new building, are movables until they have been made use of in raising a new building. But if the materials have been separated from the house or other edifice only for the purpose of having it repaired or added to, and with the intention of replacing them. they preserve the nature of immovables, and are considered as such." Beard v. Duralde, 23 La. Ann. 284.

In Maxwell v. Willard, 1 W. N. C. 355, it is held that lumber, mill work, sashes, etc., delivered on the premises for the purpose of being used in a building, are not fixtures. The court stated that it did not know of any decision which treated materials or machinery in such condition as fixtures. The roller mill cases (Voorhis v. Freeman, 2 Watts & S. 116, 37 Am. Dec. 490, and Pyle v. Pennock, 2 Watts & S. 390, 37 Am. Dec. 517, supra) were the nearest to it; but neither of them, the court said, went so far as to include raw materials not yet used at all in the building.

In Peck v. Batchelder, 40 Vt. 233, 94 Am. Dec. 392, a vendee claimed certain double win

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