The portable grist-mill, steam engine, boiler, shafting, pulleys, belts, and scales passed with the mill to Cox as fixtures. The understanding of the parties was that they were fixtures, their understanding being shown by the fact that they passed at once into the possession of Cox without question, and that subsequently a portion of them were exchanged by him for a moulding-machine. The same fixtures were embraced in the mortgage from Cox to the plaintiff, although not mentioned as such in it. The parties manifestly intended the mortgage to cover the same property that passed by the deed. McRea v. Bank, 66 N.Y. 489; 1 Jones Mort., s. 435. The effect of the exchange was, to make the moulding-machine a fixture in place of the property for which it was exchanged. The intention of the parties is shown by the fact that the machine was annexed to, and used with, the building upon the mortgaged premises; and it does not appear that the *Page 660 plaintiff released or was asked to release his mortgage lien, or that Cox undertook to make the exchange without his consent
As between Cox and White, the Gordon planer had not become the property of Cox at the time of the alleged trespass. Neither the plaintiff could hold it by his mortgage, nor the defendant by the attachment, as against White, without tendering to him the amount due on it. Cochran v. Flint,67 N.H. 514. But, as between the plaintiff and Cox, and everybody else except White, the planer, having been annexed to the mill so as to become a fixture, became a part of the mortgage security. White having received his pay in full after the alleged trespass, the planer stands like the other machinery placed by Cox in the mill. Fixtures attached to the realty after the execution of a mortgage of it become a part of the mortgage security, if they are attached for the permanent improvement of the estate and not for a temporary purpose, or if they are such as are regarded as permanent in their nature, or if they are so fastened or attached to the realty that their removal would be an injury to it. Burnside v. Twitchell, 43 N.H. 390; 1 Jones Mort., s. 436.
The machinery brought from Franklin became fixtures as between the mortgagee and mortgagor. Kittredge v. Woods, 3 N.H. 506; Despatch Line v. Bellamy Mfg. Co., 12 N.H. 205, Baker v. Davis, 19 N.H. 333; Lathrop v. Blake, 23 N.H. 46; Tuttle v. Robinson, 33 N.H. 104; Wadleigh v. Janvrin,41 N.H. 503; Burnside v. Twitchell, 43 N.H. 390; Cochran v. Flint,57 N.H. 514; Kent v. Brown, 59 N.H. 236; Cavis v. Beckford, 62 N.H. 229. They were such fixtures as are regarded as permanent in their nature, and necessary for doing the work of the mill. The buzz-planer and saw-bench were annexed to the building in the usual manner, and the counter-shafting by means of the hangers The belting connected the saws and lathe with the pulleys on the counter-shafting, and operated them and the other machinery The purposes of the annexation and the intent with which it is made are the important considerations. The owner turned his grist-mill into a sash, door, and blind factory. Such a shop without the machinery would be as useless as a grist-mill without millstones, or a saw-mill without saws (Burnside v. Twitchell, 43 N.H. 390), or a paper-mill without machinery for the manufacture of paper (Lathrop v. Blake, 23 N.H. 46). In New York, machinery attached to the realty is presumed to have been attached with a view to the permanent improvement of the freehold, in the absence of proof that the annexation was not intended to be permanent. Potter v. Cromwell,40 N.Y. 287; McRea v. Bank, 66 N.Y. 489. Whether machines become a part of the realty does not depend so much upon the character of the fastening — whether it be slight or otherwise — as it does upon the nature of the article and its use, as connected with the use of the freehold Despatch Line v. Bellamy Mfg. Co., 12 N.H. 232, 233. A mill-stone, *Page 661 resting upon the iron-work fixed to the top of the perpendicular shaft which turns it, and is kept there by the force of gravity, may be a fixture. Burnside v. Twitchell, 43 N.H. 390, 394. A steam boiler or looms, used in a mill as part of it, and necessary for doing its work and carrying on its business, may be a part of it, though held in position only by their own weight. Cavis v. Beckford, 62 N.H. 229.
The facts in this case show an actual annexation of the machinery, and its applicability to the use to which the real estate was appropriated. The fact that Cox subsequently mortgaged the machinery is not material. It was after it had been annexed to the building and used in his business.
At the hearing, the plaintiff was allowed to amend by adding a count in trespass de bonis, against the defendant's exception. Whether justice requires the amendment is a question of fact to be settled at the trial term. Piper v. Hilliard, 58 N.H. 198.
The defendant offered to show what he said and did at the sale. The evidence was excluded, and the defendant excepted. The evidence was immaterial on the question of title, which was the only question tried.
The plaintiff is entitled to judgment for $940 — the largest sum awarded by the referee.
Case discharged.
ALLEN J., did not sit: the others concurred.