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ness for the particular place where it is annexed, its being connected with the general business conducted there, and other facts going to show the intent of the owner to make one thing of the land and chattels to carry out a general purpose, would have more effect upon the question than the mode or permanence of the annexation. It appeared in that case that the chairs had been fastened to the floor, and it is to be inferred the Circuit Court must be reversed.

Samuel E. BYRNE, Jr.,



that the other property was also in some way attached to the building.

It is unnecessary to pursue this line of cases any further, since we deem the question settled by the great weight of authority in favor of the contention that such materials are not fixtures, and are removable by the mortgagor.

(... ... Mich.......)

A mortgage of a lot on which stands a

partially completed building will pass cut stone and structural iron prepared for the building and located on the lot mortgaged and that adjoining, if the intention of the parties is that the building shall be speedily completed with the material at hand.

(Moore, Ch. J., and Hooker, J., dissent.)

(December 7, 1904.)


ORROR to the Circuit Court for Marquette County to review a judgment in

It results from this that the judgment of

Jacob P. WERNER et al., Plffs. in Err. Reversed.

dows and blinds as part of the real estate bought from the vendor, who was a sash and door maker. The windows had been fitted to the window casings of the house, but had not been fastened in place when the house was sold. The blinds were made for the house, but were never fitted or put on. The vendor hid this property at the time the premises were sold, and the vendee did not learn of its existence until some time afterwards. The court held that neither the blinds nor the windows passed to the vendee. "The mere fact," says the court, "that the defendant had made some sash, painted them, and set glass in them, intending to use them, at some future time, in the construction of doubie windows for the house, does not constitute even constructive annexation. In order to make such windows a part of the realty, they must have been so annexed or attached to, or used upon, the building, as to indicate that the owner intended, by such annexation or use, to make them a part of the building." The court was of the opinion that the manner in which the windows had been put in showed that the owner did not intend to make them a part of the building.

In an early New York case it appeared that a builder contracted to build a house and furnish materials for it. As the work progressed plank was worked up on the premises into columns for a piazza. These columns were afterwards removed for convenience to other premises. The contractor also procured for the

favor of plaintiff in an action brought to recover for the alleged wrongful conversion of certain cut stone and structural iron.

The facts are stated in the opinion. Messrs. Ball & Ball, for plaintiffs in


Samuel E. Byrne, Sr., was estopped by his words and acts from claiming ownership of the material as against Mr. White. after his purchase from Thurber.

Eureka Iron & Steel Works v. Bresnahan, 66 Mich. 493, 33 N. W. 834; Thomas v. Watt, 104 Mich. 206, 62 N. W. 345; Rogers v. Robinson, 104 Mich. 329, 62 N. W. 402.

If the plaintiff or his grantor ever had any right of action, it was barred by lapse of time before this suit was commenced. Scudder v. Anderson, 54 Mich. 122, 19 N. W. 775.

building a number of carved capitals, bases for the columns, and carved window and door caps. Before any of these materials was attached they were levied on under an execution against the builder. The owner of the building claimed and sued to recover the property, but the question was not raised whether it had become part of the real estate by constructive annexation, it seeming to be assumed that it was personal property; the only ques tion being whether title had passed under the terms of the building contract. The court stated that the house standing on the plaintiff's ground became his as fast as the parts added to it became attached so as to become part of the freehold that the house in question was real property, but that the materials of which it was composed were personal property, and did not pass to the plaintiff until delivery, or until they became affixed to the freehold. The court held under the evidence, therefore. that title was not in plaintiff. Johnson v. Huat, 11 Wend. 135.

Lumber placed on a homestead lot, and intended to be made part of the homestead dwelling, is liable, in New Hampshire, to seizure under attachment. Until it becomes part of the homestead it is not within the protection of the homestead law. Carkin v. Babbitt, 58 N. H. 579.

But, under the homestead laws of Wisconsin, lath, shingles, and lumber obtained for the pur pose of repairing a house occupied as a dwell

[blocks in formation]

Snedecker v. Warring, 12 N. Y. 175; Farrar v. Stackpole, 6 Me. 154, 19 Am. Dec. 201; Voorhis v. Freeman, 2 Watts & S. 116, 37 Am. Dec. 490; Carey v. Bright, 58 Pa. 85; Hill v. Sewald, 53 Pa. 274, 91 Am. Dec. 209; Overton v. Williston, 31 Pa. 155; Pyle v. Pennock, 2 Watts & S. 390, 37 Am. Dec. 517; Covey v. Pittsburg, Ft. W. & C. R. Co.

3 Phila. 173.

Rails placed along the line of a contemplated fence for the purpose and with the tention of being used to build the fence con

stitute a part of the realty, and pass by

conveyance of the land.

Conklin v. Parsons, 1 Chand. (Wis.) 240; Ripley v. Paige, 12 Vt. 353; Noble v. Sylvester, 42 Vt. 146; Palmer v. Forbes, 23 III. 301; McLaughlin v. Johnson, 46 Ill. 163.

ing, and actually deposited upon the land, are exempt from seizure under an attachment as personalty, irrespective of the question whether such materials, deposited on the lot, become part of the realty. Krueger v. Pierce, 37 Wis.


Maxwell v. Bay City Bridge Co. 41 Mich. 468, 2 N. W. 639.

On motion for rehearing.

Messrs. Button & Heffernan, also for defendant in error:

If it was intended to have the materials

covered by the mortgage before actual anin-nexation, the better reasoning would require

such, because ordinarily they would not be their specific description in the mortgage, as included in the mortgage security until after actual annexation.

Jones, Mortg. 4th ed. § 436.

It is only in cases of uncertainty that pass to the vendee as fixtures. Cook v. Whiting, 16 Ill. 480.

So, in Texas loose cedar pickets on land at the time it was sold do not pass to the vendee, the decision being in flat conflict with the Vermont and Wisconsin cases. The court said: "No matter if the posts had been cut off the land bought by appellants [vendees], the moment they were severed from the soil they became personalty, and did not pass by a deed to the land, although they may have been cut to build a fence on the land." Longino v. Wester (Tex. Civ. App.) 88 S. W. 445.

In Indiana fence stakes, piled on the land and intended for general repairs, do not pass with a deed to the realty. Hinkle v. Hinkle, 69 Ind. 134.

d. Fencing materiais.

It seems to be settled in Vermont that suitable materials, deposited upon a farm for the purpose and with the intention of building necessary fences, pass by a conveyance of the land as a part of the realty, and are not attachable as personal property. Hackett v. Amsden, 57 Vt. 432.

In an earlier case in the same state it was held that posts and rails on a farm, distributed in piles along the roadside, and intended for immediate fencing of the land, pass with the realty. Ripley v. Paige, 12 Vt. 353.

In Wisconsin this is also held to be the better opinion. The court says that, where rails have been placed along the line of an intended fence, for the purpose of being laid into the fence, though not actually applied to that use, they pass by a deed of the land, there haying been a manifest appropriation to the use of the land. Conklin v. Parsons, 2 Pinney (Wis.) 264.

In Illinois, on the contrary, it is held that posts lying on the ground. and intended by the vendor for use in fences on the land, do not

Messrs. Button & Culver, for defendant in error:

The materials were not real estate.

Crippen v. Morrison, 13 Mich. 23; Harris v. Scovel, 85 Mich. 32, 48 N. W. 173; Curtis v. Leasia, 78 Mich. 483, 44 N. W. 500; Palmer v. Forbes, 23 Ill. 301.

Personal property does not become a fixture until actually in some form annexed, or put to some use, beneficial and permanent in its nature in connection with realty.

Dec. 568; Woodman v. Pease, 17 N. H. 282;
Johnson v. Mehaffey, 43 Pa. 308, 82 Am.
Peck v. Batchelder, 40 Vt. 233, 94 Am. Dec.
392; Carkin v. Babbitt, 58 N. H. 579; Cook
V. Whiting, 16 Ill. 480.

The question of estoppel is a mixed one of fact and law, and conclusions from the evidence must be drawn by the jury, and not by the court.

The question whether fencing material passes to a vendee of the land on which it is placed as part of the realty was touched upon in McCarthy v. McCarthy, 20 Can. Law Times, 211. The court, in holding that certain unattached rails did not pass with the land, stated that. while it might be that fence rails, piled along the line of a fence, but not used because the fence was not completed, belong to the freehold, it placed its decision on the ground that, so far as the evidence showed, there was an entire absence of intent to erect them into a fence.

The subject was likewise indirectly alluded to in Wincher v. Shrewsbury, 3 I. 283, 35 Am. Dec. 108, a case which holds that fence

stances are ever permitted to be gone into. 17 Am. & Eng. Enc. Law, 2d ed. p. 23. Unless this court can say that, under the testimony, the building materials became an integral part of the real estate, they could not be considered as covered by this mortgage deed.

Ripley v. Paige, 12 Vt. 354.

the court:

the subject-matter and surrounding circum- | volved in this case, which was intended to be used in the completion of the building. The stone had been cut and dressed for the front of the building. Each piece of the structural iron was of the dimensions provided in the plan of the building, and fit for the place where it was to go. At that time it was intended that the building would be completed. The plan of completing the building was, for some reason, abandoned, Carpenter, J., delivered the opinion of and defendants used the stone and iron for another purpose. Did the title to that material pass to Thurber by his deed? The learned trial judge held that it did not. It is urged that the building material had not become a part of the land, and was, therefore, in a legal sense, personalty at the time of the conveyance to Thurber. If this be true, it is not, in my judgment, decisive of this controversy. Though the building material was personalty, it is our duty to declare that it passed with the partially completed building, if the parties so intended, and if that intent may be ascertained from a proper construction of the conveyance of the land upon which said building stood. The question is, then, not whether the building material was in fact personalty, but whether it was intended to transfer it with the conveyance of the partially completed building. And this intent is to be determined by a proper construction of the conveyance; that is (See Norris v. Showerman, 2 Dougl. [Mich.] 16; Davis v. Belford, 70 Mich. 120, 37 N. W. 919), by applying the language of the conveyance to its subject-matter. No uncertainty results time it was the purpose of the owner to apply the same to his land, which was also taxed. Joiner v. Adams, 114 Ga. 389, 40 S. E. 281.

On the contrary, it was held in Massachusetts that manure from the barnyard of a homestead, and standing in a pile on the land. is not assets in the hands of an administrator. although not broken up or rotten, and not in fit condition for incorporation into the soil. Fay v. Muzzey, 13 Gray, 53, 74 Am. Dec. 619. But the decision was placed on the ground that manure made in the course of husbandry upon a farm is so attached to and connected with the realty that, in the absence of any express stipulation to the contrary, it passes as appurtenant.

Plaintiff brings the suit to recover for the conversion of certain cut stone and structural iron. The property originally belonged to plaintiff's father, Samuel E. Byrne. Both parties claim to have acquired his title. Plaintiff claims to have acquired it by a bill of sale executed in 1896. It is defendants' claim that in 1887 the property in controversy was transferred by Samuel E. Byrne to Henry C. Thurber, and that they have acquired Thurber's rights. It is clear that defendants have acquired the rights of Thurber, and that, therefore, the validity of their claim depends upon whether Byrne transferred the property to Thurber. The facts respecting the transfer are as follows: In 1887 Byrne conveyed to Thurber by a warranty deed (intended to be a mortgage) lots 4 and 5 of block 17 in the city of Marquette. At that time there was situated upon these lots a partially completed building in the process of erection. There was also situated on the land conveyed and on an adjoining lot the cut stone and structural iron in

rails, lying on the ground and cut by a trespasser from timber growing on government land, do not pass with the land; the court stating that fence rails, when not put into a fence or evidently intended to be so used on the land (which could not be inferred if made by a stranger), did not pass with it.

And in Noble v. Sylvester, 42 Vt. 146, the court, in holding that a stone hewn from a quarry, and intended to be used in a tomb elsewhere, did not pass to a vendee of the land from which it was cut, and upon which it was suffered to lie after severance, declared that the question was analogous to that passed upon in the fence rail cases. Said the court: "The stone may be regarded as being governed by the same principles that are applicable to timber, fence rails, and the like, that have been removed from the freehold in fact, but remain upon the premises for the purpose of being used there in the construction of fences, etc.; and, if on the land at the time the premises are conveyed, they will pass by the deed; but if they are there, not for the purpose of being used on the premises, but to be removed elsewhere, then they do not pass by the deed."

e. Fertilizers.

Under the Constitution of Georgia, requir ing all property, with specified exceptions, to be taxed, it was held that commercial fertilizers were subject to be taxed, although at the

V. Conclusion.

From an examination of the cases, the weight of authority seems to be that things placed on land with the intention of annexing them are not fixtures, where they are never actually attached. Even in BYRNE V. WERNER, which holds that the building material in question passed by the deed, it will be observed that the question does not turn upon whether the building material was in fact personalty, "but whether it was intended to transfer it with the conveyance of the partially completed building;" which intent the court determined by a construction of the language of the convey H. C. S


In Wistow's Case of Gary's Inn (14 Hen. VIII.), cited in 11 Coke, 50b, it was resolved that a millstone temporarily severed from the mill, with the intention that it should be replaced, passed with the conveyance of the mill. "So of doors, windows, rings, etc. The same law of keys, although they are distinct things, yet they shall pass with the house." In Conklin v. Parsons, 1 Chand. (Wis.) 240, is was held that rails placed along the boundary line, "not laid up into a fence, but which had been placed on the land for the purpose of building the fence," passed with the conveyance of the land. In Ripley v. Paige, 12 Vt. 354, there was a controversy as to whether certain rails passed with the conveyance of land from plaintiff to defendant. Defendant offered to prove that when the conveyance was made the rails were distributed upon the farm for the purpose of being there erected into a fence. The court said: "Upon this branch of the case we are inclined to regard the rails, if it was evident from the manner of their distribution upon the land, and other appearances, that they were designed for immediate use in fencing the land, as we should the materials of a fence accidentally fallen down, or of one purposely taken down to be immediately reconstructed, or those of an intended wall distributed in like manner. As fences always pass by a deed of the soil on which they stand if the grantor has an unrestricted right to convey both, so we are disposed to think that such materials for a fence may, in all these cases, as against the grantor, be treated as being within the operation of his deed." In Hackett v. Amsden, 57 Vt. 432, it was held that stone posts, which it seems were deposited on a farm for the purpose and with the intention of building necessary fences,

from this rule. Upon the land conveyed to | could not be seized and sold as personalty; Thurber was an incomplete building in the the court saying: "Whatever the rule may process of erection. Situated upon that be elsewhere, it seems to be settled in this land and upon the adjoining land was build- state that suitable materials, deposited ing material designed to be used for the upon a farm for the purpose and with the completion of the building. It was surely intention of building necessary fences with intended that the incomplete building them thereon, pass by a conveyance of the should be transferred to Thurber. It was land as a part of the realty." In Wadleigh surely intended that the building would be v. Janvrin, 41 N. H. 503, 77 Am. Dec. 780, speedily completed with the building ma- it was held that certain stanchion timbers, terial at hand. And I think it therefore staples, tie chains, and planks, which had equally certain that it was intended that been removed from a barn for the purpose such material should pass with the convey of making repairs, passed to plaintiff by a ance. In my judgment, there is no sound conveyance from defendant of the land upon principle of law which compels us to defeat which the barn stood, notwithstanding the this intention. On the contrary, I maintain fact that the latter had formed a plan unthat is is our clear legal duty to give it known to the former to make changes in effect. I think, therefore, that the build- the barn and to dispense with their use. ing material became the property of Thur- The court said: "It was entirely immaber. This conclusion is sustained by au- terial what purpose the defendant had thority. formed, so long as he had not carried it out. By the conveyance the barn passed to the plaintiff just as it then was, with the portions afterwards carried off by the defendant dissevered from the rest. The plaintiff saw the barn in the process of repair. He had a right to infer, and to act upon the inference, that the dissevered portions constituted an integral portion of the edifice." In Palmer v. Forbes, 23 Ill. 301, it was held that the title to rolling stock and the material provided for the repair of tracks was transferred by a mortgage of the real estate of a railroad company; the court saying: "It is a familiar principle to all that rails hauled onto the land designed to be laid into a fence, or timber for a building, although not yet raised, by lying around loose and in no way attached to the soil, are treated as a part of the realty, and pass with the land as appurtenances." (This decision and reasoning go farther than it is necessary for us to go in the case at bar.) In McLaughlin v. Johnson, 46 III. 163, it was held that rails which had once been and which were intended to again be used for a fence passed with the conveyance of the land notwithstanding the fact that at the time of such con yance they were actually in temporary use on adjoining land. See also Curtis v. Leasia, 78 Mich. 480, 44 N. W. 500. Harris v. Scovel, 85 Mich. 32, 48 N. W. 173, is not inconsistent with these views. There it was held that rails piled on land did not pass with its conveyance. The rails had once formed part of a fence. The grantor had taken down the fence because it was no longer needed, intending to use the rails elsewhere. It is clear that there was no ground upon which the grantee could assert that it was intended that the rails should pass with the land. John

son v. Mehaffey, 43 Pa. 308, 82 Am. Dec. I think, therefore, that the defendants were entitled to a verdict, and that the judgment should be reversed, with costs, and a new trial ordered.

Grant and Montgomery, JJ., concur.

Moore, Ch. J., dissenting.

568, relied upon by plaintiff and the learned trial judge, is, in my judgment, clearly distinguishable from the case at bar. In that case it was held that rolls originally purchased to be put in a mill did not pass upon a conveyance of the mill. At the time of the sale these rolls had for nearly three years remained on the property, unused, and in a rough, unfinished state. In 1886, Samuel E. Byrne, father of the They were not necessary to the operation of plaintiff, was the owner of part of lots 4 the mill, for the mill had always run with- “and 5 of block 17 in Marquette, and comout them. This afforded a ground for say- menced the erection of a building thereon. ing that it was not intended that the rolls He had plans and specifications drawn, should pass to the purchaser of the mill. specifying each piece of structural iron to go That ground does not exist in this case, into the building, with the size and length for the building material in question was of each piece. He ordered a considerable necessary for the completion of the building. quantity of structural iron, each piece of Woodman v. Pease, 17 N. H. 282, cited by which was of the dimensions provided in plaintiff, is very similar to Johnson v. Me his plans, and fitted for the place where it haffey, 43 Pa. 308, 82 Am. Dec. 568, and was to go. After commencing to lay the is likewise distinguishable from the case at foundation, he bought some of the structurbar. It is true that the court, in deciding al iron upon the premises and some on an each of these cases, stated that personalty adjoining lot, where it would be most condoes not become a part of real estate until venient to put into the building. He also actually annexed thereto. If by this it purchased some building stone, which was was intended to assert that, notwithstand cut and dressed for the front of the building ing the obvious intent of the parties, prop by the masons hired by him, some of which erty originally personalty, will not, unless were on the premises and some on the adactually annexed thereto, pass on a convey- joining lot. He continued the work of ance of real estate, the court made a state- building until the following year. A conment not necessary to its decision,-which siderable quantity of the structural iron was might have rested upon the intention of the built into the structure and some of the parties concerned, and which, as already stone was used. After finishing the baseindicated, I cannot approve. Other cases ment story, the work was suspended, but Mr. cited by plaintiff are even more easily dis- Byrne intended to go on with the work, and tinguishable. In Cook v. Whiting, 16 Ill. the iron and stone were left there for that 480, it was held that the "simple intention" purpose. Mr. Byrne gave Mr. Thurber a of the vendor, before he sold his farm, to warranty deed of the premises April 20. erect posts into a fence and hewed timber 1887, and no work was done on the building into a granary, without having done any after that time. The deed was intended thing towards those objects more than to to cperate as a mortgage, and Byrne exnaul said posts and timber onto the farm, pected, notwithstanding the deed, to com"is not sufficient to pass the property in plete the building. Mr. Byrne had, in 1883. said posts and timber." In Peck v. Batch- mortgaged the premises to one Michael elder, 40 Vt. 233, 94 Am. Dec. 392, the court Hagerty to secure the payment of $2,500, gave effect to the obvious intention of the which remained unpaid. He also executed parties in deciding that certain property, mortgages on the property, one to Campviz., detached extra blinds and windows, bell & Wilkinson, February 14, 1885, for aid not pass with the sale of the house. It $1,100, and one to James Dwyer, July 20, was held in Carkin v. Babbitt, 58 N. H. 1887, for $1,400. The Thurber title was 579, where the controversy arose between sold on execution July 13, 1889, for $2,000. the owner and an attaching creditor, that Henry C. Thurber, by warranty deed dated lumber designed for the erection of a house April 23, 1889, acknowledged February 4. was personalty. The facts in that case were 1890, conveyed the premises to Peter White for $4,000. After making this purchase very unlike those in the case at bar. The from Thurber, Mr. White purchased all lumber was "neither in form nor position these other mortgages and the execution as it was designed to be permanently used." lien. The several deeds and mortgages There was nothing "to distinguish it from above enumerated covered the real estate, ordinary lumber suitable for building pur- and made no mention of building material. poses." Nor could the court apply in that The structural iron and stone remained on case the principles applicable to a contro- the premises as they were left at the suspenversy between mortgagor and mortgagee. Ision of building operations. April 15, 1902, 69 L. R. A.

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