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

error:

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.

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 prop erty, 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

dows and blinds as part of the real estate | building a number of carved capitals, bases 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, paint-stated that the house standing on the plained them, and set glass in them, intending to use them, at some future time, in the construction of double windows for the house, does not constitute even constructive annexation. In order 10 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

tiff'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. Hunt, 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 purpose of repairing a house occupied as a dwell

This structural iron and stone became a | part of the realty.

Manwaring v. Jenison, 61 Mich. 117, 27 N. W. 899.

The question of fixture or no fixture must depend upon the intention of the parties. Morrison v. Berry, 42 Mich. 397, 36 Am. Rep. 446, 4 N. W. 731; Wheeler v. Bedell, 40 Mich. 696; Patton v. Moore, 16 W. Va. 428, 37 Am. Rep. 789; McFadden v. Craw ford, 36 W. Va. 671, 32 Am. St. Rep. 894,

15 S. E. 408.

The idea that there must be an actual

physical annexation before property, originally chattels, can become part of the realty, has in the modern decisions been gradually abandoned, and the intent of the parties is

now the real criterion.

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 intention of being used to build the fence constitute 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 Ill. 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. 269.

d. Fencing materials.

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 having 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.

Johnson v. Mehaffey, 43 Pa. 308, 82 Am. Dec. 568; Woodman v. Pease, 17 N. H. 282;

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.

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 annexation, the better reasoning would require their specific description in the mortgage, as such, because ordinarily they would not be 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.

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 III. 283, 35 Am. Dec. 108, a case which holds that fence

the subject-matter and surrounding circumstances 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:

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,

another purpose.

Carpenter, J., delivered the opinion of and defendants used the stone and iron for 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.

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 else. where, 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, requiring all property, with specified exceptions, to be taxed, it was held that commercial fertilizers were subject to be taxed, although at the

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.

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

ance.

from this rule. Upon the land conveyed to | could not be seized and sold as personalty; Thurber was an incomplete building in the process of erection. Situated upon that land and upon the adjoining land was building material designed to be used for the completion of the building. It was surely intended that the incomplete building should be transferred to Thurber. It was surely intended that the building would be speedily completed with the building material at hand. And I think it therefore equally certain that it was intended that such material should pass with the convey ance. In my judgment, there is no sound principle of law which compels us to defeat this intention. On the contrary, I maintain | that is is our clear legal duty to give it effect. I think, therefore, that the building material became the property of ThurThis conclusion is sustained by au

ber. thority.

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,

the court saying: "Whatever the rule may be elsewhere, it seems to be settled in this state that suitable materials, deposited upon a farm for the purpose and with the intention of building necessary fences with them thereon, pass by a conveyance of the land as a part of the realty." In Wadleigh v. Janvrin, 41 N. H. 503, 77 Am. Dec. 780, it was held that certain stanchion timbers, staples, tie chains, and planks, which had been removed from a barn for the purpose of making repairs, passed to plaintiff by a conveyance from defendant of the land upon which the barn stood, notwithstanding the fact that the latter had formed a plan unknown to the former to make changes in the barn and to dispense with their use. The court said: "It was entirely immaterial what purpose the defendant had 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 Ill. 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 conveyance 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

Grant and Montgomery, JJ., concur.

Moore, Ch. J., dissenting.

son v. Mehaffey, 43 Pa. 308, 82 Am. Dec. I think, therefore, that the defendants 568, relied upon by plaintiff and the learned were entitled to a verdict, and that the trial judge, is, in my judgment, clearly judgment should be reversed, with costs, distinguishable from the case at bar. In and a new trial ordered. 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. They were not necessary to the operation of the mill, for the mill had always run without them. This afforded a ground for saying that it was not intended that the rolls should pass to the purchaser of the mill. That ground does not exist in this case, for the building material in question was necessary for the completion of the building. Woodman v. Pease, 17 N. H. 282, cited by plaintiff, is very similar to Johnson v. Me haffey, 43 Pa. 308, 82 Am. Dec. 568, and is likewise distinguishable from the case at bar. It is true that the court, in deciding each of these cases, stated that personalty does not become a part of real estate until actually annexed thereto. If by this it was intended to assert that, notwithstand ing the obvious intent of the parties, prop erty originally personalty, will not, unless actually annexed thereto, pass on a conveyance of real estate, the court made a statement not necessary to its decision,-which might have rested upon the intention of the parties concerned,—and which, as already indicated, I cannot approve. Other cases cited by plaintiff are even more easily distinguishable. In Cook v. Whiting, 16 Ill. 480, it was held that the "simple intention" of the vendor, before he sold his farm, to erect posts into a fence and hewed timber into a granary, without having done anything towards those objects more than to naul said posts and timber onto the farm, "is not sufficient to pass the property in said posts and timber." In Peck v. Batchelder, 40 Vt. 233, 94 Am. Dec. 392, the court gave effect to the obvious intention of the parties in deciding that certain property, viz., detached extra blinds and windows, aid not pass with the sale of the house. was held in Carkin v. Babbitt, 58 N. H. 579, where the controversy arose between

It

In 1886, Samuel E. Byrne, father of the plaintiff, was the owner of part of lots 4 "and 5 of block 17 in Marquette, and commenced the erection of a building thereon. He had plans and specifications drawn, specitying each piece of structural iron to go into the building, with the size and length of each piece. He ordered a considerable quantity of structural iron, each piece of which was of the dimensions provided in his plans, and fitted for the place where it was to go. After commencing to lay the foundation, he bought some of the structural iron upon the premises and some on an adjoining lot, where it would be most convenient to put into the building. He also purchased some building stone, which was cut and dressed for the front of the building by the masons hired by him, some of which were on the premises and some on the adjoining lot. He continued the work of building until the following year. A considerable quantity of the structural iron was built into the structure and some of the stone was used. After finishing the basement story, the work was suspended, but Mr. Byrne intended to go on with the work, and the iron and stone were left there for that purpose. Mr. Byrne gave Mr. Thurber a warranty deed of the premises April 20. 1887, and no work was done on the building after that time. The deed was intended to operate as a mortgage, and Byrne expected, notwithstanding the deed, to complete the building. Mr. Byrne had, in 1883, mortgaged the premises to one Michael Hagerty to secure the payment of $2,500, which remained unpaid. He also executed mortgages on the property, one to Campbell & Wilkinson, February 14, 1885, for $1,100, and one to James Dwyer, July 20, 1887, for $1,400. The Thurber title was sold on execution July 13, 1889, for $2,000. Henry C. Thurber, by warranty deed dated April 23, 1889, acknowledged February 4, 1890, conveyed the premises to Peter White from Thurber, Mr. White purchased all for $4,000. After making this purchase these other mortgages and the execution lien.

the owner and an attaching creditor, that lumber designed for the erection of a house was personalty. The facts in that case were very unlike those in the case at bar. The lumber was "neither in form nor position as it was designed to be permanently used." 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.sion of building operations. April 15, 1902, 69 L. R. A.

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