The law of fixtures has undergone many modifications; everything annexed to the freehold was at one time governed by the law of the freehold; but as Kent, in his Commentaries, has it, the law has undergone a system of judicial legislation so as almost to render the right of removal of fixtures a general rule instead of an exception *Page 288 (2 Kent, 11th ed., 420.) The rule was most liberal when applied between tenant and landlord (1 Washburn on Real Property, 18.) It was and remained, with all the modifications claimed for it, especially harsh in its application to the owner of personal property converted by a wrong-doer, and so brought into realty as to become a part of it, by changing its nature from personal to real, and leaving the owner no redress except against the wrong-doer (who may be a pauper) for its conversion. (Gibbons on Fixtures 13 Law. Lib., 13, 2, p. 4.) It was then in the light of the law, as established by what Kent termed a system of judicial legislation, declared by an act of our legislature that "things annexed to the freehold or to any building for the purpose oftrade and manufacture, and not fixed into the wall of the house so as to be essential to its support, should be deemed assets and go to the executor." (3 R.S., 5th ed., 169, § 6, sub. 4.) Prior to this enactment, the law, in regard to fixtures, as between heir and executor and mortgagor and mortgagee, or vendor and vendee, was regarded as identical. This act, as was observed inMurdoch v. Gifford (18 N.Y., 28-32), "should be regarded as furnishing very clear proofs that in the legislative mind that kind of property is considered as not being in any sense included in lands, tenements and hereditaments;" and, as the reporter has it, "may be regarded as a general rule for all cases and parties." If this act had been interpreted to mean what its language obviously imports, this controversy as well as others which have preceeded it would probably not have arisen; but it has not, and the result is that decisions have been made so at variance with each other as to be quite irreconcilable. InHouse v. House (10 Paige, 158, 163), which was a case between heir and executor, the chancellor, who manifestly did not concur in what the legislature deemed the part of wisdom in the passage of the act referred to, said it was "impossible to define, in a short sentence of three lines, what was to be a part of the freehold itself, and what were mere fixtures or things annexed to the freehold for the purpose of trade or manufacture;" and, *Page 289 therefore, held it to be his duty to go back to the common law to ascertain what was a substantial part of the freehold, and what a mere fixture annexed to the freehold, and what is considered a part of a building, and what, in its nature, is mere personal property, and only annexed to such building temporarily for the purpose of trade or manufacture. There is scarcely to be found a rule more perspicuous in its language and less difficult in its application than that prescribed in the act. There certainly can be no difficulty in determining whether things annexed to the freehold or to any building are or are not for the purpose of trade or manufacture; no legal interpretation was ever given to the language employed at variance with its ordinary import; and what less simple rule for determining whether the character of the things annexed for that purpose are changed from personal to real, than by ascertaining whether they are so fixed into the wall of a house as to be necessary for its support. It may not be the best rule, but it is difficult if not impossible to frame one more lucid and easy of application. In Fryatt v. The SullivanCompany (5 Hill, 116, 117), the property wrongfully converted was so firmly affixed to the freehold that it could not be removed without destroying the building in which it was placed; and it was held that no action could be maintained for the property against the owners of the building, who were innocent purchasers under a mortgage upon the freehold. In Murdock v.Gifford (18 N.Y., 28, 32), the learned judge who delivered the opinion of the court regarded the observations of the chancellor, in House v. House, as just, and remarked that it was quite obvious that the statute did not mean that the executor should take everything not essential to the support of the walls of a building. This remark may be just, when limited to the walls only. The statute is not thus restricted in its expression; the exception is not limited to things so fixed into the walls of a house as to be essential to the support of the mere walls, but to the support of the house itself. In a subsequent case (Ford v.Cobb, 20 N.Y., 344, 348, 349), the observations of the *Page 290 learned judge who delivered the opinion in Murdock v.Gifford, as well as those of the chancellor in House v.House, were the subject of comment. Those of the former were held not to be necessary to the decision of the case in which they were made, and those of the chancellor were not regarded as satisfactory; but, inasmuch as the judgment in the case ofHouse v. House had become a rule of property, and the case ofFord v. Cobb, then under consideration, could be satisfactorily disposed of upon other grounds, the rule held by the chancellor should not then, or without great consideration, be disturbed. In a still later case (Potter v. Cromwell,40 N Y, 287, 291, 292), which was an action between the purchaser of real estate, upon which was a frame building containing a portable grist-mill, and a receiver appointed at the instance of a judgment creditor, for the recovery of the value of the mill, it was, as I understand the case, found as a fact that the mill was taken out of the building by taking the mill apart, and without injuring it or the building. It was further found that when the judgment debtor put the mill in the building he fastened it firmly and securely to it, and designed it as a permanent structure for use as a custom mill, and to make it a permanent accession to the freehold. In this case the statute was not referred to. The case of House v. House was cited as authority, and the court held that, notwithstanding the mill was not fixed into the wall of the house so as to be essential to its support (for it was moved without injury to either), yet, because it was designed as a permanent structure and as an accession to the freehold, it became thereby a part of it; and thus the rule stated by the chancellor in House v. House has not only been acquiesced in, but after the lapse of more than a quarter of a century has been reasserted and established as a rule upon property, and ought not therefore to be now disturbed. The referee has found, as facts in the case, that the property in question was annexed to the freehold or building for the purpose of trade and manufacture, and not so fixed into the wall of any building or house as to be essential to its support, and that it *Page 291 was capable of being removed without injury to the walls of the building; when this can be done there is another mode of determining whether its character has been changed from personal to real; and that is by ascertaining the intention with which the owner annexed it. (Hill v. Sewald, 53 Pa., 271, 274, 275;Capen v. Peckam, 35 Conn., 88, 94; Crippen v. Morrison, 13 Michigan, 35; Teaff v. Hewitt, 1 McCook, Ohio Rep., 511, 529, 530.) And in Vermont, in order to change property from personal to real by annexing it to the freehold, the intention to do so must be affirmatively established. (Hill v. Wentworth28 Vt., 248.) In Potter v. Cromwell (40 N.Y., 287), that fact was held to have been established within the stringent rule mentioned in Vermont (id., 297.) A portion of the property in controversy, viz., one planing machine, the steam-engine and fixtures, were, before they became in any manner attached to the realty, incumbered by the chattel mortgage to Westcott, and thus, within the rule in Ford v. Cobb (20 N.Y., 344), their character as personal property was preserved. The removal of the boilers required the displacement of the brick that covered them, as did the removal of the kettles, in Ford v. Cobb, involve the displacement of certain bricks of which the arch was composed; but inasmuch as it did not require any serious damage to the freehold to which they were attached, the attachment did not destroy the lien of the mortgage that incumbered them before the attachment was made. The other planing machine, as well as the saw benches and saws, were, like the looms in Murdock v.Gifford, complete in themselves, as were also the copper pipes for steaming hubs were of equal value whenever wanted, and affixed to the building only for the convenience in using, and capable of removal without injury to themselves, and hence, within case of Murdock v. Gifford (18 N.Y., 28), were personal. I do not concur in the suggestion of the learned judge in Potter v. Cromwell (40 N.Y., 283, 296), that annexation will constitute the article annexed to be a part of the realty where no different intention or purpose is manifested. *Page 292 It was not necessary to the decision of the case, the affirmative fact having been found that a permanent accession to the freehold was intended. (Id., 291, 292 and 297.) The better rule is the Vermont rule (Hill v. Wentworth, supra), requiring the intention to render the article a fixture, by the act of annexation, to be made affirmatively to appear; it will do something toward the accomplishment of what the statute intended, and be more just to creditors and those whose personal property has been or may be wrongfully annexed. In this case the referee has found, as a fact, that the boilers, engine, shafting and gearing were annexed without an intent of either making them a part of the freehold or any intention of removing them. The fact that they were annexed for the purpose of trade and manufacture, and were capable of being removed without injury to the building containing them, ought not to constitute the article annexed a part of the freehold, in the absence of a finding that an accession to the freehold was intended.
The judgment should be affirmed.
For reversal, LOTT, Ch. C., HUNT and EARL, CC. For affirmance, GRAY and LEONARD, CC.
Judgment reversed.