In considering this case, and determining whether the articles in question were, or were not, fixtures, we are to follow the decision in Snedeker v. Warring, (2 Kern. 174,) holding the same rule as between mortgagor and mortgagee that would be held as between grantor and grantee. And this, whether the mortgagee were, or were not, in possession of the premises. Nor can there be any doubt, if the property before detached were fixtures, that the person having the title to the realty could sue for the specific recovery of the things themselves, or in trespass for the damages to the freehold. A tort feasor has no right to complain of the form of the remedy; nor is the owner of machinery, of which the chief value may be its immediate employment on the premises, to be debarred of legal process for its immediate recaption for the purposes of such employment.
It seems to" me, however, that the mortgagee was in possession of the premises at the time of the removal of the machinery, so that the taking was from his actual possession ; a possession which his subsequent foreclosure and sale ripened into an absolute title, instead of a conditional one, as it was when he took the possession.
Were those articles of machinery fixtures ? I am inclined to think the rule on that subject has not been essentially altered, since the case of Walker v. Sherman, (20 Wend. 639.) *63That case (p. 653) holds that “ very slight affixing for permanent use is sufficient and that “ the ancient distinction between actual annexation and total disconnection is the most certain and practical.” And (p. 655) that to be a fixture, it must be, “ in some way permanently, or at least habitually, attached” to the building. (See same case, pp. 639, 643, 651.)
[Albany General Term, December 3, 1860.In the case before us, the sole use of the building was the accommodation and employment of this machinery; it was attached to the building by braces and nails; it had been so attached when the building itself was put up, and had always so continued. It would seem clearly within the rule of the case last cited.
Further, it nowhere appears that the sale of this machinery was under any execution; whether the one originally levied on it, or another. And it does appear that all those executions are satisfied without any resort to this property or its avails.
That the plaintiff’s mortgage debt has, since, become satisfied by his purchasing the property on the foreclosure, does not, I think, alter his rights. If, at the time of its seizure, he had the title, (even a conditional one,) that is sufficient to found the action.
I think judgment should be entered, on the verdict, for the plaintiff.
Gould, Wright and Peckham, Justices.]