The opinion of the court, filed July 3, was delivered by
Chambers, J.The defendants, who were machinists, contracted, in the autumn of 1847, with Thomas McAllen, at a certain price, to construct and put up for use a steam-engine, appurtenant to the flour-mill of McAllen, propelled by a small water-power, to be paid for in part by him when completed, and the balance after a short credit. Haywood & Snyder proceeded to construct the engine, and, in the progress of the work, brought to the mill of McAllen in Dauphin county, the two boilers, -a balance-wheel, and some other parts of the machine. McAllen was to prepare the foundation and the enclosure. The boilers were laid loose on the foundation prepared, and the walls and building to enclose them were partially erected, but not completed, when McAllen became embarrassed by the claims of his creditors. It was intended by McAllen to enclose the boilers in a way that would admit of their removal out of the small building that covered them ; but some error in the position of the door would not allow of that removal without displacing a small part of the brick wall and the door-frame. Haywood & Snyder had prepared the other parts of the engine, and which were on their way to the place of erection, when, on account of the pressure of McAllen by his creditors, they were stopped, and the progress of the work to completion suspended, with the approbation of McAllen, who said he could not comply with his part of the agreement. McAllen entertained the expecta*528tion that he would still be able to make some arrangement with his creditors that would allow him to retain his real property. By an agreement between Haywood & Snyder, by Mr. Berryhill their attorney, and McAllen, dated 18th January 1848, it was declared that the iron boilers then in the building attached to the mill, were the property of Haywood & Snyder, who agreed to leave the same where they were for three months from that date, giving this time to McAllen for the purpose of making an arrangement with his creditors ; and in the event of his inability to make such arrangement, then Haywood & Snyder were to be left to their legal remedy for so much of the materials as were already furnished, or to the removal of the same at their option: and further, in the event of an arrangement with the creditors aforesaid, the said Haywood & Snyder are to put up the engine complete to the satisfaction of McAllen, he securing them for the same, upon such terms and time as may be agreed upon between the parties.
The boilers and wheel remained at the same place and in the same condition, when an execution, issued at the suit of Wright & Nephew, against McAllen, on the 11th December 1848, directed to Jacob Shell, sheriff and defendant below, was levied on the boilers and wheel, which wheel had not been put up. Shell, under his levy, sold the boilers and wheel on the 12th January 1849, having on the 8th of the same month made a levy on the mill and other real property, with a minute description. Notice was given Shell that Haywood & Snyder claimed the boilers and balance-wheel as their property, and Shell afterwards acknowledged that he was indemnified, for his proceedings. The mill and real estate of McAllen were sold at sheriff’s sale on the 25th of April 1849, for $7005, and a deed made and acknowledged by the sheriff to S. Cameron on the 26th of April 1849.
This action is one of trespass, by Haywood and Snyder against Shell, the sheriff, for the levy and sale of the steam-boilers and balance-wheel. On the trial, the plaintiff was allowed to prove that McAllen, before the execution issued in this case, had declared that he did not claim these boilers and wheel, and that they might be removed; that he could not claim the property in consequence of not having paid any thing on it, and that he never did claim it. The admission of the evidence was objected to by defendant, and exception taken, which is now assigned for error. This evidence does appear to this court to hare been pertinent and competent. The property and possession of the boilers and wheel were in Haywood & Snyder and McAllen. The only person who could gainsay the right and control of the property by Haywood & Snyder was McAllen, the other contractor, the owner of the freehold on which the property was; and as such his acts and declarations in relation to this property were proper evidence to be submitted *529to the jury, as evidence of ownership, possession, and the right to remove.
Many points were presented by the defendant to the court below, which elicited from the learned judge who tried the cause an elaborate and able charge and reply, and in which many errors are assigned by the plaintiff in error. It is not our purpose to review each one separately, which would extend this opinion unnecessarily, when they present but a few questions requiring the judicial cognizance of this court.
Were the steam-boilers and wheel the property of the plaintiffs below, and the right to the possession of the same in them, at the levy and taking by the defendant ?
The defendant alleges that the right of property in the plaintiffs was divested by the delivery to McAllen — and that by the location of the steam-boilers, they became a part of the realty and were not removable.
Was the delivery, according to the evidence, such as passed these parts of the engine beyond the control of Haywood & Snyder, the manufacturers ?
They contracted to make and put up a complete machine to be put in operation, finding the materials, and were to be paid for the same a certain price on completion. This machine would require time in the process of manufacture of its parts, as well as in its construction on the premises where it was to be used. McAllen was only bound to receive and pay for a complete machine: for its parts he was not responsible, and to him they were without value. It was said by this court, in the case of Clemens v. Davis, 7 Barr 263, that where the contract was for a finished article, nothing but the delivery of a finished article could satisfy it.
That McAllen might progress with the foundation and enclosure the boilers were placed on that foundation loose; and from which they might be removed with but slight injury to the small building for their enclosure. At this stage of the construction, the manufacturers are informed of the insolvency of McAllen and his inability to pay them for the engine, and they were justifiable in suspending the work — in withholding the other parts of the engine that were manufactured, and were at their factory or in transitu, and in reclaiming the portion that had been placed on the premises of McAllen.
Whether the same policy of law, which, for the benefit and encouragement of trade, allows a lessee or manufacturer to remove during his term, the buildings, engines, or machines erected on the realty or annexed to it by him, would embrace a machinist, with the like right to remove his machine or engine before its use, on the failure of the vendee to pay for it according to contract, and without his consent, it is not necessary for the court to decide, as *530the facts and circumstances in evidence in this case show a consent to removal by the vendee whilst he was owner of the freehold.
The right of removal of improvements on realty by a lessee, when made for the purposes of trade, does not depend on annexation as the criterion, as many parts of a building erected by a lessee may be removed by him, when it can be done without substantial injury to the freehold.
We deem it unnecessary to extend this opinion by the review of the many cases referred to in the argument, on the subject of fixtures, or by the consideration of such fixtures as were removable or .irremovable, or of the objects that were appurtenant to realty and not removable as personalty though not annexed to the realty.
The rule of severance and removal is one subject to the control and modification of the parties to the contract and representing the property, who may vary the same according to their convenience, pleasure, or regard to right. That consent will change property otherwise real into personal estate is ruled in Piper v. Martin, 8 Barr 211; Mitchell v. Freedly, 10 id. 198, and White’s Appeal, 10 id. 254. For whether attached to the realty or not, or in whatever manner attached, is immaterial, when the parties agree to consider it personal property: 8 Barr 211; 2 W. & Ser. 116; 10 Barr 253.
In the ease under consideration, McAllen acted with fairness and integrity to Haywood & Snyder when he found that he was unable to pay for the engine.. He said he could not claim it, and that he did not claim it. In this there was the strongest evidence of disclaimer by the owner of the freehold of any claim by him to it as part of the freehold or as his property. By the agreement of 18th January 1848 recited, it is acknowledged by McAllen that these boilers were the property of Haywood & Snyder, which for the accommodation of McAllen were to be left on his premises, for three months, after the expiration of which time they were at liberty to remove them. This agreement was in confirmation of the previous declarations of McAllen disclaiming any right to the boilers, and did not in any degree impair or abridge the rights of Haywood & Snyder. The time given wás^or the accommodation of McAllen, to allow him to make,an arrangement with his creditors; and whatever extension of time there was in allowing the boilers to remain on McAllen’s freehold, contravened then the rights of no one but Haywood & Snyder and McAllen. McAllen was the only person who had any right to object or require removal; and as he acquiesced, he is presumed to hold the possession subject to the will and demand of Haywood & Snyder. McAllen no doubt clung to the hope that he could still make an arrangement to the advantage of his creditors ; and if this were to be effected by a sale, that the arrangement might provide for the use of the steam-engine to be completed by Haywood & Snyder — McAllen securing them for the price of *531the engine. Such expectation may account for the forbearance of the makers to remove, and the willingness of McAllen to hold the possession as bailee for Haywood & Snyder.
The possession of McAllen under the, circumstances could not deceive or mislead any of his creditors. The possession of part of an unfinished engine would lead either creditor or purchaser of ordinary vigilance to inquire into the condition of the contract. No creditor or purchaser was misled. The debts contracted by McAllen were antecedent to the delivery of any part of the engine. There was not in this case either legal or constructive fraud to divest Haywood & Snyder of their right of property in the boilers or wheel.
The defendant, who places his defence in part on the allegation that the boilers were a part of the realty, made, as sheriff, his levy on them as personal property to.be severed and removed, and sold them at public sale as personal property. After his levy on the boilers and wheel, he levied on the mill and realty, with a minute description of its improvements and advantages, without embracing the boilers, which he had made the subject of distinct levy and sale. The defendant received notice before the sale by him of the claim of Haywood k Snyder to the boilers and wheel, which he did not regard. For his proceeding he said he was indemnified. The purchaser of the realty at sheriff’s sale did not purchase in ignorance of the claim by the manufacturers of the boilers and wheel. They had been treated by the sheriff as personal property, removable, and sold as such on the same execution by which the realty was levied. The unfinished condition of the engine was enough to lead a purchaser to inquire whose property it was.
This case, in the opinion of the court, is governed by the intention and agreement of the parties having the control of the rights of property and possession in the boilers and wheel of the unfinished engine; and under the contracts between them, the plaintiffs, Haywood & Snyder, had both the right of property and the right to possession of the boilers and wheel at the time of the levy and sale made by defendant. The right of removal was in the plaintiffs, and the right to -sustain this action.
The other errors assigned by plaintiff in error are not, in the opinion of the court, sustained, and the judgment of the court below is affirmed.