delivered the opinion of the court, October 6th, 1884.
In Lehman v. Watts & Son it has just been decided that the lease contains “no covenant, express or implied, to pay for ore not mined and removed.” Whether the lessor could 'maintain covenant against the lessees to recover damages for the default in not mining and removing two hundred tons of ore in every period of thirty days, is a question not raised in that case, nor is it in this. Damages arising from breach of contract to mine a certain quantity of ore is not to be confounded with royalties to be paid upon the number of tons mined.
The parties stipulated that the lessees might remove the new machinery they put on the premises, at the termination or cancellation of the lease, provided all .royalties were paid on all ore mined; and “that said machinery is to remain on said premises if said lease is forfeited from any cause whatever, unless all royalties and certificates of weight are paid and furnished within thirty days from notice of forfeiture.” This stipulation is for the benefit of the lessor. When a tenant attaches to the land fixtures for his business the law in favor of trade presumes that he intended to remove them before the end of the term; it is only on leaving them that the intention to make a gift to the landlord is imputed to him : Hill v. Sewald, 53 Pa. St. 271. By the contract the exercise of the plaintiffs’ right was subjected to the condition that all royalties be paid within thirty dajm from notice of the forfeit-, ure, in case of forfeiture from any cause. The lessees agreed, upon their default in' full compliance with the conditions of the lease, to surrender and forfeit all rights under it at the end of thirty days, provided they had written notice of such default; and if the default arose from specified causes they were to have an additional thirty days to comply. Nothing appears to warrant a construction differing from the ordinary meaning of the words in the contract, and the meaning is not doubtful. The proviso is express that the lessees shall have *111notice of the default; the argument is that they shall surrender and forfeit at the end of thirty days, and if certain causes exist they shall have additional thirty days to comply. Within the thirty clays, expressly, they had right to remove the ore mined, furnish the certificates, pay the royalties and remove the machinery.
The lessor gave notice of the default on May 1, 1888; immediately thereafter took possession of the premises, without consent of the lessees, forcibly prevented the lessees from removing the machinery within the period of thirty clays from the notice, and the certificates had been duly furnished and the royalties all paid before the lessees attempted to remove their property. All evidence of the facts was excluded, and in the present inquiry what was offered to be proved, if competent, must be taken as proved.
A fixture erected Ipy a tenant on demised premises for the purposes of trade, is personal property, and may be removed by him witliin the term; and it does not alter the case that by the agreement between the landlord and the tenant, the fixture in a certain event, was to become the property of the landlord, unless the event had actually occurred: Lemar v. Miles, 4 Watts 830. By law, and also by agreement of the parties, the property claimed by the plaintiffs was personalty until the end of the term, or until the end of thirty days from the notice of the default. The learned judge of the Common Pleas, citing Darrah, Moore & Co. v. Baird, 13 W. N. C. 332; [s. c., 5 Out. 265], as authority, ruled that trover would not lie because the landlord was in exclusive possession of the land before the tenant undertook to remove the fixtures. But the facts in that case materially differ from the facts in this. A glance at the. opinion of the present Chief Justice reveals that the ruling was based oil the fact that the landlord had actual and legal possession, by consent of all interested parties, before those who had been tenants demanded the fixtures — it was the case of demand and refusal after the end of the term. The point and scope of the case are stated in the syllabus thus : “A refusal by the owner of the freehold, after he has taken possession upon the expiration and surrender of the term, to peiunit the former tenants to remove fixtures, which they had attached to the premises during the term, will not enable the latter to maintain trover for them against him.”
In this case the landlord took possession before the end of the term without the tenants’ consent, and with strong hand prevented the tenants from removing their personal property. Possession was not voluntarily surrendered by the tenants, it was wrongfully taken by the landlord. Before the end of tlie term, whether the property in controversy was attached to *112the realty or not, it was personalty and. belonged to the tenants. They had agreed not to remove it until payment of all royalties. Upon such payment within the term, the right of removal was complete. The instant the defendant took and appropriated the plaintiffs’ property they became entitled to redress by proper action at law. His wrongful possession is not a bar to the action of trover. If he entered in violation of his contract and unjustly converted .the chattels, he is liable as a stranger would be for entering and taking the plaintiffs’ goods.
The title to real property cannot be .directly tried in trover, but may be incidentally brought in question: Green v. Ashland Iron Co., 62 Pa. St. 97. This issue involves only the ownership of personal property and the right to remove it. No title to land, is in question, and the right of possession is determined by the contract. Whether the defendant had the right of possession under the contract is incident to the issue, as would be the claim of a third party who had intruded into possession and appropriated the plaintiffs’ personal property.
We are of opinion that evidence of the facts set out in the second assignment of error was admissible.
Judgment reversed and venire facias de novo awarded.