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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 The question to be solved on this record is any other residence. The plaintiff lived on whether or not certain doors, mantels, cas. the property at the time the trust deed was ings, columns, etc., deposited in a building executed, and continued to occupy it until for the purpose of annexation, but which, as after the foreclosure sale. It further appears a matter of fact, were never physically at that in the deed from the trustee to the purtached to the building, passed to the pur chaser said material was not mentioned, nor chaser under a mortgage sale of the prem was it mentioned in the trustee's advertiseises.

înent of the foreclosure sale. There is eviThe facts revealed in the record are that dence tending to show that plaintiff at all plaintiff and wife on the 17th day of June,

times claimed this material, and after the 1901, executed a deed of trust on certain

first sale gave notice to the purchaser, Mcreal estate to James T. Dunn, trustee, to

Dougal, that he claimed it. It is also shown secure an indebtedness to one D. E. Rose, for the sum of $1,000. There was a foreclosure not to sell this material, and claimed it as

that he notified the trustee before the sale of this trust deed, and the property was purchased by M. S. McDougal for the sum of

his property. It further appears that, about $2.100. The latter sold the property in a

a year after L. F. Gunn went into possession short time thereafter to the defendant, L.

of the premises under his purchase from }. Gunn. It appears that when the prop

McDougal, he used said material which he

found stored in the building for the purpose erty was first mortgaged a house had been erected upon the premises, which was not

of completing it. Thereupon the plaintiff, entirely finished. Prior to the sale by the Barney Blue, who was the original morttrustee, the plaintiff mortgagor had bought gagor, and had purchased this material and certain tinishing material, and deposited it

left it in the building, brought suit to rein a room of the building on the second floor. cover the sum of $148, the value of said The material consisted of doors, mantels, material. There was a verdict and judgment casings, coluinns, corner beads, etc., which

in the court below in favor of the defendant. had been ordered with the intention of being The plaintiff appealed and has assigned used in this house, but none of it was attached in any way to the building.

The disputed question of law is whether It further appears that this finishing ma said material passed, under the mortgage attempt has been made to have movable articles suddenly broken up in the midst of a thriving declared fixtures because of mere intention to business, by suffering a creditor to gut his mill annex them to the freehold when they have of everything which happened not to be spiked never been actually attached, as was done in and riveted to the walls, and sell its bowels, not BLUE v. Guxx, and BYRNE V. WERNER. This only separately, but piecemeal." has been termed mere ideal annexation, and, if This is perhaps the first instance, says the it may be said to be a species of constructive court, in Teaff v. Hewitt, 1 Ohio St. 530, 59 Am. annexation, it marks the utmost limit that doc Dec. 634, supru, in which movable property was, trine has reached.

by constructive annexation, adjudged parcel of The roller: mill cases have furnished an inter the really for the avowed reason that it ought esting contribution to the subject. In Voorhis to be placed beyond the convenient reach of v. Freeman, 2 Watts & S. 116, 37 Am. Dec. 490, creditors. Nevertheless a similar reason was the question was whether a number of detached advanced in the case of Patton v. Moore, 16 W. rolls which were part of the machinery of an Va. 428, 37 Ain. Rep. 789. iron rolling mill were fixtures. The rolls in In Pyle v. Pennock, 2 Watts & S. 390, 37 Am. cluded among their number several duplicates Dec. 517, extra rolls of an iron rolling mill, but all of them had at one time or another been some of which were in housings and some of in actual operation, so that it was impossible to which had been used, but had been removed from say which were proper members of the set and buildings in which they had been accustomed to which were supernumeraries.

“But even l'un, and were not in any way connected therethat could be told," says the court, “all might. with, were held to be part of the realty. It nevertheless, be deemed a part of the mill, see. does not appear from the report of this case ing that they are often broken, and cannot be whether any of the detached rolls in question instantly replaced if they are not kept ready ou had never been fitted or used in the mill. hand.” It was held that even the duplicates In the later case of Johnson v. Mehaffey, 43 were part of the realty. The court gives the l'a. 308, 82 Am. Dec. 568, the issue was squarefollowing curious reason as the ground for its ly presented, and it was held that rolls cast for decision : "In Pennsylvania, where a statute a rolling mill and paid for and delivered beside directs that real estate shall not be sold on exe it. where they had lain for two or three years in cution before the rents, issues, and profits shall a rongn, untinished state, did not pass on a have been found by an inquest insufficient to sheriff's sale of the realty. The court said: satisiy the debt in seven years, not only might “Do the rolls go with the mill to the purchaser ? this conservative provision be evaded, but a The test question is, Were they elementary parts cotton spinner, for instance, whose capital is of the mill at the time of the sale? And, as chiefly invested in loose machinery, might be matter of l'act, it is quite plain that they were

sele, as fixtures, or whether it remained the , pose of finishing a building, thereby becomes personal property of the original mortgagor. a part of the realty, in such a sense that it

As already stated, said material was not passes under the deed to the purchaser. mentioned in any of the various conveyances The definition of a fixture usually given is, of the property, and there was no physical | "An article which was a chattel, and which, attachment of said material to the building; by being physically annexed or affixed to the and, while this material was originally pur- realty, becomes accessory to it, and a part chased to be aflixed to this building, it was and parcel of it.” 13 Am. & Eng. Enc. Law, commercial finishing, carried in stock by 2d ed. p. 596. dealers, and could have been used on other It thus appears that annexation is the conbuildings.

trolling element in the very definition of a While the question thus presented is oi fixture, and we find, on examination, that the first impression in this state, so far as we overwhelming weight of authority in this are advised, it seems to have been settled country is that the physical annexation of as a inatter of legal controversy in many a chattel to the realty is necessary in order other states. The question of what con to render it a part of the realty. See cases stitutes a fixture has usually arisen in cases cited in ,13 Am. & Eng. Enc. Law, 2d ed. p. where the article, appurtenance, or material 600. has been allixed 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 vet placed in a fence, have been held to be the present term in the case of Union Bank personalty. Thuccat v. Stamps, 67 Ala. 96: E 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- I house, but not actually put in place and not; for the mill had always run without them. mill, and which were necessary for the purNo doubt they were intended to be made a part pose for which they were to be used, must be of the mill; but we do not see how we can take regarded as part of the realty, and not liable the intention, without fact, in order to declare to the levy of an execution as personal propwhat constitutes the mill.

And, if erty. The reason given for the decision was mere intention could aflix such articles to the that persons involved in any degree would not realty, then a mere change of intention would have much encouragement to erect permanent uniix them, or prevent their becoming affixed, improvements; that they might have all their and we should thus be without any rule at all to arrangements made to build, their contracts guide us. Besides, it is rather a contradiction made, the material all on the ground, and that in terms to say, at the same time, that they are the whole scheme might then be frustrated, and parts of the structure, and are intended to be irreparable loss be inflicted by the levy of an made so. That these rolls will fit no other mill execution on the materials thus collected on the does not make them part of this one, or prove | ground. them so.

The rolling mill, consist The Patton Case was cited and followed in ing of all its constituent parts, as it was actu McFadden v. Crawford, 36 W. Va. 671, 32 Am. ally constructed and used at the time of the St. Rep. 894, 15 S. E. 408. In the latter case sale, is all that passed by the sale; and there a rolling mill company had purchased two railfore these rolls were not included."

road spike machines to be attached to its mills. The two earlier cases in the state were not The machines had been shipped on a car which referred to in the opinion.

had been run in on a railroad switch belonging So, in England loose duplicate rolls of a fixed to the mill company upon its grounds. The rolling mill machine and detached rolls of dif foundation had been prepared to receive the ferent sizes for use in the machine, and which machines, and one of them had been unloaded. had been actually fitted to it, are essential parts and the other was still on the car, but had of the machine; but rolls that have never been been partially moved, when they were levied on used in, or fitted to, the machine, which require as personal property. The court held that they something more to be done to them before they were not liable to seizure and sale as personal are fitted, are not essential parts of it. Er property. parte Astbury, L. R. 4 Ch. 630.

In Iowa a steam engine and other machinery As to other machinery, it was held, in Pat for a mill do not become a fixture so as to de. ton v. Moore, 16 W. Va. 428, 37 Am. Rep. 789, feat the lien of a chattel mortgagee as against that an engine and boiler, bought by the owner a holder of a prior vendor's lien on the land, alof a miil, and hauled into the yard with the though it was purchased to be annexed, and it bona fide intention of attaching them to the 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. r'ease, 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 This class of cases was discussed in Wil. Southern R. Co. 29 N. J. Eq. 311, it was liamson v. New Jersey Southern R. Co. 29 N. said: “The criterion above stated, of actual / J. Eq. 311, in which it was said: “The annexation to the freehold as a rule for de illustrations of doves in a cote, deer in a termining when chattels become part of the park, and fishes in a pond are entirely inrealty, is as well settled in this state as any applicable to the present subject. They go other rule of property. Exceptions founded with the inheritance, for special and peculiar on financial and groundless distinctions only reasons. In Amos & Ferard on Fixtures, tend to produce uncertainty and confusion thev are classified under the head of heirin the rules of property, which should be per- looms,-a class of property entirely dismanent and uniform... Tested by the tinct from fixtures." See also Hoyle v. foregoing criterion, it is manifest that the Plattsburgh & M. R. Co. 54 N. Y. 315, 13 rolling stock of a railroad must be regarded Am. Rep. 595. as chattels which have not lost their dis- It remains to notice several cases decided tinctive character as personalty by being af- by this court which are supposed to illusfixed to and incorporated in the realty.” trate the policy of our laws upon this sub

There 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 which are design for consumption in the use although work had been begun for the purpose and which may be sold and carried away, and and with the intention of annexation; where used as well for other purposes, as in the operaall the machinery was lying on the ground near tion of the road, and, when taken away, have the mill, or in it, but where none of it had no distinguishing marks to show that they been put in place. Miller v. Wilson, 71 Iowa, were designed for railroad uses, cannot, we 610, 33 N. W. 128.

think, with any propriety, be treated or considAnd in New Hampshire the mere fact that ered as anything but personal property, and saws which have been kept in a mill for a year subject to, and governed by, the law applicable or more, and never attached, were purchased to such property." One of the judges of the with the intention to be used as a part of the court dissented as to the opinion that rails, mill, is not sufficient to make them fixtures, but chairs, spikes, and ties, drawn upon and not other saws, which have been set and used in attached to the road, but intended to be so, the mill. are part of the real estate. Burn- savored of the realty, or passed with it, by side v. Twitchell, 43 N. H. 390.

conveyance.

In Wyatt v. Levis & K. R. Co. 6 Quebec b. Materials for usc, repair, or reconstruction Law Rep. 213, it was held that railroad fastenof railroads.

ings and sleepers on hand for the repair of the

road were not immovables by destination under în Illinois materials provided for and de- article 379 of the Code, which reads as follows: signed to be attached to a railroad are, for the "Movable things which a proprietor has purpose of a mortgage or conveyance, a part of placed on his real property, for a permanency, the real estate itself. Palmer V. Forbes, 23 or which he has incorporated therewith, are Ill. 301. In this case the controversy was be. immovable by their destination so long as they tween mortgagee and execution creditor, and remain there. Thus within these restrictions, the property in dispute was certain car wheels. the following and other like objects are immov(ar axles, a quantity of locomotive ties, and able; (1) Presses, boilers, stills, vats, and miscellaneous iron and fuel oil. The court tuns; (2) all utensils necessary for working said : “We are of opinion that the rolling stock, forges, paper mills, and other manufactories ; rails. ties, chairs, spikes, and all other ma. manure, and the straw and other substances terial brought upon the ground of the company intended for manure, are, likewise, immorable encumbered by the mortgage, and designed to be by destination." attached to the realty, should be considered as In Covey y. Pittsburg, Ft. W. & C. R. Co. 3 a part of the realty, and encumbered by the Phila. 173, the question whether old and new mortgage as such ; but fuel oil, and the like, rails, and rail chairs, lying along the track sented to the prior sale. The court said that In King v. Uedges. 1 Leach, C. L. 201, a it might be assumed that, where one brings a prisoner was indicted for stealing six light, quantity of material on his land for the purpose giazed mindow sashes. The window frames of building a permanent structure, there is. from which they were taken were fixed in their constructively, an annexation of the chattels proper places, but the sashes were neither hung to the realty, and that, were the owner to sell nor beaded in the frames, but were fastened in the land while matters were in that stage. hy laths nailed across the frames to prevent the buyer would take the whole ; but held that

upon whic)

the furnishing under the contract for that, the work is finished," in favor of the work use; and the lien exists whether the lumber man, or “materials are furnished,” as to was used or not. That case involved a con- the furnisher: The furnisher may, there. struction of Shannon's Code, $ 3531, estab- fore, within one year after he has delivered lishing a mechanic's lien and furnisher's the materials contracted for, have his remlien on any lot of ground or tract of land | edy by attachment to enforce his lien.

a house had been erected, built, The case of Halley v. Alloway, 10 Lea, 523. or repaired, or fixtures or machinery fur- was another case involving the furnishernished or erected, or improvements made lien for repairing and furnishing the Grand by special contract with the owner or his Opera House in the city of Nashville. The agent, in favor of the mechanic or under- question presented for determination in that taker, founder, or machinist who does the case was whether the things claimed to have work, or any part of the work, or furnishes been furnished entitled the furnisher to a the materials, or any part of the materials, lien on the house and lot. The material or puts therein any fixtures, machinery, or | furnished consisted of stage machinery, such material, either of wood or metal, and in as pulleys, rollers for cylinders, etc., used favor of all persons who did any portion of for fitting up the stage,-some attached and the work or furnished any portion of the some not,-ch: furnished and fitted to the material for the building contemplated in floor, and seats for the accommodation of the this section. Section 3539 provides: "The lien audience, painting the scenery, curtains, and shall include the building, fixture, or im- the like. The court held the nature of the provement, as well as the lot or land, and thing done and the character of the house continue for one year after the work is fin- repaired, and for which the materials were ished or materials are furnished.” The furnished, as well as the intent of the party court, in dealing with these two sections building, served to guide to the correct conheld that it is the furnishing of the lumber clusion as to whether the work done was for repairs, etc., that creates the lien; and work done on the house, and became part of that it does not depend upon the use of it by it. These elements are better guides than the purchaser whether the seller shall have the old ideit as to fixtures, which was whetha lien. Otherwise, by not using it for a year, er the thing was permanently attached and the owner could entirely defeat the lien of fixed in or to the freehold. In getting up : the purchaser. Such is not the proper con- theater, the whole building, considered in struction of said acts, and this is made reference to its use, makes the house conmore clear by the provision in § 3539 that tracted for. All that serves to complete and the lien shall continue for one year “after furnish such house for the purpose designel ir readiness for repairs or reconstruction, are their falling out. The court held that they fixtures, was raised, but not decided; the court were not fixed to the freehold. taking the position that such property is not In Cook v. Whiting, 16 Ill. 480, it was held llable to seizure and sale on execution for an or- that hewed timbers provided and intended for dinary debt on the ground of public policy. a granary, and lying on the ground at the time But the court said that, independently of the it was sold, did not pass to the vendee. The public purpose for which they were used, court, conceding the vendee to be strictly pro doubtless they were liable to seizure.

tected and entitled to all that in law belongs

to the land, said that, after doing this in the c. Building materials.

most extended sense, it was unable to include

these timbers as fixtures becoming part of the The attempt to have building materials that

land. have never been attached to the freehold de

In Banfill v. Twyman, 71 Ill. App. 253, Afclared fixtures seems to have been generally un- firmed in 172 111. 123, 49 N. E. 385, it apsuccessful.

reared that a purchaser of land at sheriff's sale In Tripp v. Armitage, 4 Mees. & W. 687, it claimed a quantity of brick and other build appeared that wooden sash frames intended to ing materials that had been brought upon the be annexed to a hotel building were delivered premises for the purpose of replacing a build on the premises by the contractor, where they ing destroyed by fire. Operations having been were duly approved and returned to him for the suspended by the financial embarrassment of the purpose of having iron pulleys belonging to the owner of the land, the materials in question hotel owners affixed. While the frames were in had previously been sold by the sheriff under his shop he went into bankruptcy. The own. an execution as personal property.

The purers of the hotel claimed the property under the chaser of the premises claimed the materials terms of their contract with the builder as work as constructively annexed to the land, but the actually done and fixed, but it was held that it evidence showed that he had impliedly conpassed to the assignee.

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

In the case of Grosvenor v. Bethell, 93 building designed for theatrical exhibitions, Tenn. 579, 26 S. W. 1096, one of the objects as much as do the counters on which goods of tie bill was to determine whether or not are exposed for sale in a retail mercantile Bethell, the purchaser at first mortgage sale, store. It is probable the scenery and other thereby acquired title to all the theater furarticles herein mentioned are as perma- niture and fixtures; the same not having nently attached to and were a part of the been specifically mentioned. It was held building as such counters.

that a mortgage by an incorporated opera In Steger v. Arctic Refrigerating Co. 89 house company, made after the purchase of Tenn, 453, 11 L. R. A. 580, 14 S. W. 1087, lot, and while the theater buildings were was held that statutes creating liens upon in course of erection thereon, conveying the real estate in favor of those who, under con- lot and "all the buildings and improvements tract with the owners, have furnished lum- thereon or to be erected thereon,” operates to ber or materials for erection of buildings, pass all furniture, fixtures, and furnishings machinery, etc., thereon, are construed lib- then or thereafter placed in the theater erally in favor of lienholders, as regards the building, and essential to its successful opersubject-matter to which the lien should at ation; citing Halley v. Alloway, 10 Lea, 523, tach. In that case it appears that the as settling this question. Arctic Refrigerating Company erected a fac- In Grewar v. Alloway, 3 Tenn. Ch. 584, tory on a lot in Nashville for the manufac- it was held that the rollers, pulleys, etc., for ture of vapor for cold storage. By permis- shifting scenery, and other stage properties, sion of the city this company laid subterran- were fixtures or machinery, within the meanean pipes in the streets, connecting with its ing of the mechanic's and furnisher's lien factory, to convey the vapor to its customers. act. It was further said that the movable P. supplied labor and materials in the erec- machinery and flying stages of a theater, tion of the factory, and also furnished and necessary for the purpose of theatrical exhilaid down the pipes in the streets. It was bitions, are trade fixtures, and removable by held that the plant, including lot, factory, the tenant, as between him and his landlord, pipes, etc., is an entirety, ard P.'s lien for but, as between the owner and mechanic, are materials furnished or labor done upon any subject to the mechanic's lien law. The part of it attached to the whole.

question whether a thing is a fixture or not, The case last cited, it will be observed, as between owner and mechanic, depends does not even remotely touch the question 'little upon the mode of annexation. Its fitthe plaintiff could not recover because there the number corresponding with their respective had been a severance of the property by legal windows, and the work of painting them has proceedings, with the implied consent of the been actually begun. Manchester Mills parties themselves.

Rundlett, 23 N. H. 271. In Indiana clapboards, piled upon land at the In Louisiana bricks and lumber, lying on the time it is sold and intended for general repairs, premises and intended to be used for a new do not pass with a deed to the land. Hinkle building, do not form part of the realty under v. Hinkle, 69 Ind. 134.

article 168 of the Civil Code, which provides In Wodman v. l'ease, 17 N. H. 282, the that “materials arising from the demolition court held that a chattel fit to be annexed to of a building, those which are collected for the the freehold, and which has been brought upon purpose of raising a new building, are movables it with the intention on the part of the posses- until they have been made use of in raising a sor to annex it, does not become a fixture, new building. But if the materials have been unless actually annexed or placed in position separated from the house or other edifice only in which it is intended to be used, and in for the purpose of having it repaired or added which it is adapted for use. The court, how- to, and with the intention of replacing them, ever, did not take the position that actual an they preserve the nature of immovables, and nexation is necessary to constitute a fixture, are considered as such." Beard v. Duralde, stating that the term might embrace other 23 La. An. 284. things than such as are denoted by the word in In Maxweil v. Willard, 1 W. N. C. 355, it is its strict etymological sense. The question held that lumber, mill work, sashes, etc., de. in the case was whether a stone which had livered on the premises for the purpose of been quarried and brought onto the land for being used in a building, are not fixtures. The the purpose of being fitted and used at some court stated that it did not know of any de future time in a doorstep passed, while in this cision wbich treated materials or machinery in condition, to the vendee upon a sale of the land. such condition as fixtures. The roller mill The court decided that it did not.

cases (Voorhis v. Freeman, 2 Watts & S. 116, Blinds intended for a house, but not painted, 37 Am. Dec. 190, and Pyle v. Pennock, 2 and not hung on the house to remain as part Watts & S. 390, 37 Am. Dec. 517, supra) were of it, do not become annexed to the house so the nearest to it; but neither of them, the court as not to be liable to seizure under an execu- said, went so far as to include raw materials tion against the property of the builder by not yet used at all in the building. whom they were furnished, although the blinds In Peck v. Batchelder, 40 Vt, 233, 94 Am. have been fitted to the windows, marked with Dec. 392, a vendee claimed certain double win

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