Barker, J.:
As the chattel mortgages on the engine and boiler, under which the plaintiff claims title, were executed after these articles were removed to the premises and put in use, the mortgages never attached as liens on the property as against the defendant and those under whom he claims, if they were fixed to the real estate and became part of the freehold. Parsons having acquired his title subject to the real estate mortgage and assumed the payment of the debt secured thereby, by a personal covenant, the ■ question presented is to be considered as one arising between mortgagor and mortgagee. The rule in such cases is the same as the one applied to grantor and grantee, and between these parties everything that forms a part of the freehold passes by a sale and conveyance of the freehold itself, if there be nothing to indicate a contrary intention. Fixtures, and additions in the nature of fixtures, which are placed in a building by a mortgagor after he has mortgaged the same, become part of the realty, as between him and the mortgagee, and cannot be removed or otherwise disposed of by him while the mortgage is in force. These are admitted propositions.
What shall be considered as fixtures, and as such pass with the real estate, is often a vexed question, and is not always easy of determination. Different rules prevail under different circumstances, depending on the relation of the parties and the nature and use of the property and the intention with which the owner of the property removed the articles upon and affixed the same to the land. The principle of law that movables, when attached to land, become [41]*41part of tlie freehold and pass with it has its origin in the common law. The rule, as anciently established, has been very much relaxed in modern times in favor of sonie parties having no interest in the fee of the land, particularly between landlord and tenant, and also as between grantor and grantee and mortgagor and mortgagee, concerning a class of machinery used in manufacturing establishments. Hardly any two decisions can be found that are precisely alike, each having some distinctive peculiarity which has been seized upon in determining the result. Many of the rules of interpretation, as stated and laid down in some of the cases and followed in particular instances, are hostile and irreconcilable. All of the elementary writers, as well as most of the cases, however, agree that the article claimed to be part of the freehold must be affixed or annexed, in some way to the land or it continues to be personal property. By the old rule, whatever was affixed to the realty by the mere act of annexation immediately became part and parcel of the freehold itself. (Broom’s Legal Maxims, m. p. 295; Lee v. Risdon, 7 Taunt., 190.)
Amos and Farrar, in their treatise on the law of fixtures, remark; that in order to constitute a fixture, it is necessary that the article should be laid into the land, or united to it, or to substances previously united therewith. Based upon this rule as to the necessity of annexation in some form, in its application the slightest attachment has been held sufficient in some instances, and constructive annexation has been adopted in others. As to the boiler and engine, I am of the opinion that it was in fact affixed and attached to the soil, so that it became part of the freehold, if it was the intention of the owner of the land, at the time he removed the same on to the premises, to make it a permanent improvement to the freehold with a view of adding to its value and to propel the machinery used therein. If this view is correct it was error to hold as a matter of law, that, the engine and boiler were personal property, as against the claim of the defendant, and it should have been submitted to the jury as a question of fact, with the instruction that if they found that such was the intention and purpose of the owner of the freehold, then the character of the annexation was such as to constitute the boiler and engine a fixture.
'The evidence was such as to sustain the conclusion, if such was [42]*42the opinion of the jury, that it was the intention of Parsons to affix the engine and make it a part of the realty. It was the motive power used to drive the machinery in the factory, and well adapted for that purpose. It was used in the building in the place of an engine and boiler which had been removed from the factory because they were worn out and useless. Without motive power of some kind the building and machinery would have been of much less value, and the business in which the owner was then engaged could not have been continued. He was personally liable to pay the debt secured by the mortgage, and so far as I can discover, he had no motive or interest in keeping the engine a movable thing and treating it as personal property. When Parsons purchased the property and assumed the payment of the mortgage he assured the holder of that security, that, he intended to continue the business in the factory and run the same to its full capacity, and that the machinery was attached to the freehold and constituted a part of the property mortgaged, and he promised, also to insure the property and assign the policy to him as a further security. This may not amount to a valid agreement that the motive power thereafter to be brought upon the premises and placed into use should, as between them, be regarded as a part of the freehold, yet it is strong evidence in the defendant’s favor that Parsons intended, when he placed the boiler and enging in position and adopted it as the motive power to be used in the factory, that he intended to annex it to the freehold.
There is evidence that the mortgagor had a contrary intention, which consists mainly in the circumstance that he gave a chattel mortgage to the seller to secure the purchase-imoney. This is not a controlling circumstance, for the reason that he afterwards paid up and discharged the same, and that being out of the way, the real estate mortgage attached, if they had become fixtures.
A subsequent chattel mortgage, under which the plaintiff claims title, embraced tbé shafting and other machinery, which, as between grantor and grantee, mortgagor and mortgagee, were ■fixtures beyond all dispute.
Mere intention to make an article personal a fixture, without annexation to the realty, will not make it one, but when such an intention does exist in the mind of the owner of the land and of [43]*43the article, then, the slightest affixing will make it a part of the freehold. Such intention often becomes the controlling fact in determining the question whether, in law, the article in dispute is or is not a fixture.
Mr. "Washburn says: Whether a thing which may be a fixture becomes a part of the realty by annexing it, depends, as a general proposition, upon the intention with which it was done.” (Vol. 1, page 17.)
In McCrea v. The Central National Bank (66 N. Y., 495), Rapallo, who prepared the opinion of the court, remarked, “ as between vendor and vendee, the mode of annexation is not the controlling test. The purpose of the annexation, and the intent with which it was made, is in such cases the most important consideration, The permanency of the attachment does not depend so much on the degree of physical force with which the thing is attached, as upon the motive and intention of the party attaching it. If the article is attached for temporary use, with the intention of removing it, a mortgagee cannot interfere with its removal by the mortgagor. If it is placed there for the permanent improvement of the freehold, he may.”
Free access — add to your briefcase to read the full text and ask questions with AI
Barker, J.:
As the chattel mortgages on the engine and boiler, under which the plaintiff claims title, were executed after these articles were removed to the premises and put in use, the mortgages never attached as liens on the property as against the defendant and those under whom he claims, if they were fixed to the real estate and became part of the freehold. Parsons having acquired his title subject to the real estate mortgage and assumed the payment of the debt secured thereby, by a personal covenant, the ■ question presented is to be considered as one arising between mortgagor and mortgagee. The rule in such cases is the same as the one applied to grantor and grantee, and between these parties everything that forms a part of the freehold passes by a sale and conveyance of the freehold itself, if there be nothing to indicate a contrary intention. Fixtures, and additions in the nature of fixtures, which are placed in a building by a mortgagor after he has mortgaged the same, become part of the realty, as between him and the mortgagee, and cannot be removed or otherwise disposed of by him while the mortgage is in force. These are admitted propositions.
What shall be considered as fixtures, and as such pass with the real estate, is often a vexed question, and is not always easy of determination. Different rules prevail under different circumstances, depending on the relation of the parties and the nature and use of the property and the intention with which the owner of the property removed the articles upon and affixed the same to the land. The principle of law that movables, when attached to land, become [41]*41part of tlie freehold and pass with it has its origin in the common law. The rule, as anciently established, has been very much relaxed in modern times in favor of sonie parties having no interest in the fee of the land, particularly between landlord and tenant, and also as between grantor and grantee and mortgagor and mortgagee, concerning a class of machinery used in manufacturing establishments. Hardly any two decisions can be found that are precisely alike, each having some distinctive peculiarity which has been seized upon in determining the result. Many of the rules of interpretation, as stated and laid down in some of the cases and followed in particular instances, are hostile and irreconcilable. All of the elementary writers, as well as most of the cases, however, agree that the article claimed to be part of the freehold must be affixed or annexed, in some way to the land or it continues to be personal property. By the old rule, whatever was affixed to the realty by the mere act of annexation immediately became part and parcel of the freehold itself. (Broom’s Legal Maxims, m. p. 295; Lee v. Risdon, 7 Taunt., 190.)
Amos and Farrar, in their treatise on the law of fixtures, remark; that in order to constitute a fixture, it is necessary that the article should be laid into the land, or united to it, or to substances previously united therewith. Based upon this rule as to the necessity of annexation in some form, in its application the slightest attachment has been held sufficient in some instances, and constructive annexation has been adopted in others. As to the boiler and engine, I am of the opinion that it was in fact affixed and attached to the soil, so that it became part of the freehold, if it was the intention of the owner of the land, at the time he removed the same on to the premises, to make it a permanent improvement to the freehold with a view of adding to its value and to propel the machinery used therein. If this view is correct it was error to hold as a matter of law, that, the engine and boiler were personal property, as against the claim of the defendant, and it should have been submitted to the jury as a question of fact, with the instruction that if they found that such was the intention and purpose of the owner of the freehold, then the character of the annexation was such as to constitute the boiler and engine a fixture.
'The evidence was such as to sustain the conclusion, if such was [42]*42the opinion of the jury, that it was the intention of Parsons to affix the engine and make it a part of the realty. It was the motive power used to drive the machinery in the factory, and well adapted for that purpose. It was used in the building in the place of an engine and boiler which had been removed from the factory because they were worn out and useless. Without motive power of some kind the building and machinery would have been of much less value, and the business in which the owner was then engaged could not have been continued. He was personally liable to pay the debt secured by the mortgage, and so far as I can discover, he had no motive or interest in keeping the engine a movable thing and treating it as personal property. When Parsons purchased the property and assumed the payment of the mortgage he assured the holder of that security, that, he intended to continue the business in the factory and run the same to its full capacity, and that the machinery was attached to the freehold and constituted a part of the property mortgaged, and he promised, also to insure the property and assign the policy to him as a further security. This may not amount to a valid agreement that the motive power thereafter to be brought upon the premises and placed into use should, as between them, be regarded as a part of the freehold, yet it is strong evidence in the defendant’s favor that Parsons intended, when he placed the boiler and enging in position and adopted it as the motive power to be used in the factory, that he intended to annex it to the freehold.
There is evidence that the mortgagor had a contrary intention, which consists mainly in the circumstance that he gave a chattel mortgage to the seller to secure the purchase-imoney. This is not a controlling circumstance, for the reason that he afterwards paid up and discharged the same, and that being out of the way, the real estate mortgage attached, if they had become fixtures.
A subsequent chattel mortgage, under which the plaintiff claims title, embraced tbé shafting and other machinery, which, as between grantor and grantee, mortgagor and mortgagee, were ■fixtures beyond all dispute.
Mere intention to make an article personal a fixture, without annexation to the realty, will not make it one, but when such an intention does exist in the mind of the owner of the land and of [43]*43the article, then, the slightest affixing will make it a part of the freehold. Such intention often becomes the controlling fact in determining the question whether, in law, the article in dispute is or is not a fixture.
Mr. "Washburn says: Whether a thing which may be a fixture becomes a part of the realty by annexing it, depends, as a general proposition, upon the intention with which it was done.” (Vol. 1, page 17.)
In McCrea v. The Central National Bank (66 N. Y., 495), Rapallo, who prepared the opinion of the court, remarked, “ as between vendor and vendee, the mode of annexation is not the controlling test. The purpose of the annexation, and the intent with which it was made, is in such cases the most important consideration, The permanency of the attachment does not depend so much on the degree of physical force with which the thing is attached, as upon the motive and intention of the party attaching it. If the article is attached for temporary use, with the intention of removing it, a mortgagee cannot interfere with its removal by the mortgagor. If it is placed there for the permanent improvement of the freehold, he may.”
Numerous other cases might be cited where the courts have made the intention with which the act of annexation is done the controlling fact in determining whether the article is a fixture or not. This is a reasonable rule by which to determine the controversy, when one arises, whether the article is a part of the realty or not, for the reason that the person whose intention is made the test was, at the time of the affixing, the owner of both species of property.
As to the annexation to the freehold, and whether there was one in the sense of the law, much consideration should be given, in my ■opinion, to the localization which was given to the boiler and engine by its long and continued use in the same position. It was placed within the walls of the building and covered by the roof, and rested directly upon the earth, and was held in position, so that it could be safely and properly used, by its own weight. This may be considered within the meaning of the ancient rule, a letting of the boiler and engine into the earth and annexing it thereto. This rule has not been relaxed in any case, as between grantor and grantee, mortgagor and mortgagee, when [44]*44applied to the motive power used in propelling machinery on the premises in question, whether such power be water or steam. On the contrary, T think that the cases show that the slightest annexation of the motive power has been held sufficient to constitute the same a part of the realty. As we all know, many valuable farm buildings constructed of wood rest on a few disconnected stones as a foundation, which are not imbedded in the earth, and rest wholly on the surface and are kept in position by the power of gravitation; yet, within the rule, such buildings are deemed annexed to the soil or imbedded therein and go as a part of the freehold. Any frame house with the sills laid directly on the earth would be regarded as attached, within the rule, if the owner of the soil intended to make the same a part of the realty 'when it was erected. Placing a movable on the earth is, in a sense, affixing it to the earth. To complete the annexation it is not necessary to cover any portion of it with the earth or to prepare the surface for it to rest upon. By the law of gravitation it becomes affixed to the spot where it was placed. Whether in any particular instance it is affixed to the land and goes with it as a part of the realty depends upon other considerations.
As to what constitutes an annexation of a movable, so as to make it a part of the realty was fully considered in Snedeker v. Warring (12 N. Y., 170), and the court there said r “ A thing may be as firmly affixed to the land by gravitation as by clamps or cement. Its character may depend much upon the object of its erection. Its destination, the intention of' the person making the erection, often exercises a controlling influence, and its connection with the land is looked at principally for the purpose of ascertaining whether that intent was that the thing in question should retain its original character or whether it was designed to make it a permanent accession to the lands.”
The discussion of the question in the case last mentioned is interesting and instructive. The application of the principle which applies to and governs this class of cases should be applied intelligently to the improvements which are constantly being made in the mechanic arts, and the improved mode of constructing machinery and holding the same in the place intended for use. The mode of Combining engines and boilers as one article ready' for use on leav[45]*45ing the workshop, like the one"in question, is a modern invention. The boiler, ñues and fire-box are constructed together, and the engine combined therewith, and form one .piece of mechanism or machinery placed in a frame adapted to sustain and support the same when in use, and are ready to be operated on being placed on ,any smooth, firm surface, such as the floor of a building, a brick foundation, or directly upon the ground. They are often made portable by mounting the same upon trucks which are used as a means of moving them from place to place. Except when so constructed, they are no more portable than any other piece of machinery of like weight. Designating this combination, of engine and boiler, inclosed in a frame suitable to stay and hold it in position while being operated, as being portable, has no significance whatever, for it is but a name given to a thing.
The circumstance that this engine and boiler were left to stand on the low trucks, which were in some manner attached to the frame, as a means of moving the same, should not be regarded as controlling, and as a reason for holding as a matter of law that they were not fixtures. It is evidence on the question whether or not the owner intended to affix them to the land as a permanent improvement. One engine and boiler constructed after a plan like this may be so slight and its motion so violent, that, it must be set or fastened in some way before it can be used, another is heavy enough to be kept in place by its own weight. There is no reason for saying that one is a fixture and the other is not. It is absurd to say that it is necessary to nail the heavy one to the floor to make it a part of the freehold, when twenty men could not move it a half-inch. In ascertaining when movables have become part of the realty, regard should be had to the manner in which they are annexed. In this ease'the engine and boiler were put in to supply the premises with power, to propel machinery which had become part of the fixtures. They were well adapted for the purpose intended, and without such power the value of the real estate would have been much less, and, if it was the intention of Mr. Parsons, the owner, to permanently attach and use them with the premises, they became fixtures. (Tifft v. Horton, 53 N. Y., 377; Voorhees v. McGinnis, 48 N. Y., 278; Potter v. Cromwell, 40 N. Y., 287.)
As to the mode of affixing, whether by actual physical annexa[46]*46tion or by gravitation, wben used in propelling machinery in mills and factories by steam or water power, the following cases may be referred to as bearing on the question: Winslow v. Merchants' Insurance Company (4 Met., 306), Sands v. Pfeiffer (10 Cal., 258), Hill v. Wentworth (28 Vt., 428), Harris v. Haynes (34 id., 220), Sweetzer v. Jones (35 id., 317), Fullam v. Stearns (30 id., 443), Voorhis v. Freeman (2 Watts & Sargt. [Pa.], 116), Pyle v. Pennock (id., 390).
As to tbe articles of machinery used in the building for which the plaintiff had a recovery for their value, we do not discover any error in the rulings of the court, as to whether they were or were not fixtures, although they were actually annexed while in use, the same being necessary to keep them steady and in position, they did not become part of the freehold estate unless such was the intention of the owner when he purchased and put them in use. The question of intention was made controlling, although there was an actual physical annexation, and the cases already cited are authority upon that point.
The defendant did not submit the question to the court and waive the right to go to the jury, as claimed by the learned counsel for the plaintiff. At the close of the evidence the defendant asked the uourt to direct a verdict in his favor, on the ground that the machinery was real estate. The plaintiff at the same time requested the court to direct a verdict in his favor, for the engine and boiler, which the court did, and to which the defendant took an exception.
It is an exception to a ruling made at the request of the plaintiff, and the case does' not fall within the rule upheld in the cases referred to.
The judgment should be reversed, new trial granted and the order denying a new trial reversed, with costs to abide the event.
Smith, P. J., Beadley and Coblett, JJ., concurred.
Judgment reversed and new trial ordered, costs to abide the event.