This case' is submitted on an agreed statement of facts; and, since the burden of proof is on the plaintiff, there must be judgment for the defendants unless the facts stated establish the plaintiff’s title.
There is some conflict of authority, in different jurisdictions, in regard to the question when machines placed in a building become fixtures which pass with a conveyance of the real estate. In this Commonwealth the general principles applicable to such cases have often been considered, and are well established; but there is frequently difficulty in the application of them to particular cases.
The character of the property, as real or personal, may be fixed by contract with the owner of the real estate when the article is put in position; but such a contract cannot affect the rights of a mortgagee, or of an innocent purchaser without notice of it. Hunt v. Bay State Iron Co. 97 Mass. 279. Thompson v. Vinton, 121 Mass. 139. Southbridge Savings Bank v. Exeter Machine Works, 127 Mass. 542, 545. Case Manuf. Co. v. Garven, 45 Ohio St. 289. Except in cases where a contract determines the question, a machine placed in a build*522ing is found to be real estate or personal property from the external indications which show whether or not it belongs to the building as an article designed to become a part of it, and to be used with it to promote the object for which it was erected, or to which it has been adapted and devoted, — an article intended not to be taken out or used elsewhere, unless by reason of some unexpected change in the use of the building itself. The tendency of the modern cases is to make this a question of what was the intention with which the machine was put in place. Turner v. Wentworth, 119 Mass. 459. Southbridge Savings Bank v. Exeter Machine Works, 127 Mass. 542, 545. Allen v. Mooney, 130 Mass. 155. Smith Paper Co. v. Servin, 130 Mass. 511, 513. Hubbell v. East Cambridge Bank, 132 Mass. 447. Maguire v. Park, 140 Mass. 21. McRea v. Central National Bank, 66 N. Y. 489. Hill v. National Bank, 97 U. S. 450. Ottumwa Woolen Mill v. Hawley, 44 Iowa, 57. These eases seem to recognize the true principle on which the decisions should rest, only it should be noted that the intention to be sought is not the undisclosed purpose of the actor, but the intention implied and manifested by his act. It is an intention which settles, not merely his own rights, but the rights of others who have or who may acquire interests in the property. They cannot know his secret purpose ; and their rights depend, not upon that, but upon the inferences to be drawn from what is external and visible. In cases of this kind every fact and circumstance should be considered which tends to show what intention, in reference to the relation of the machine to the real estate, is properly imputable to him who put it in position.
Whether such an article belongs to the real estate is primarily and usually a question of mixed law and fact. Turner v. Wentworth, 119 Mass. 459. Allen v. Mooney, 130 Mass. 155. Maguire v. Park, 140 Mass. 21. Carpenter v. Walker, 140 Mass. 416. Southbridge Savings Bank v. Mason, 147 Mass. 500. But the principal facts, when stated, are often such as will permit no other presumption than one of law. It is obvious that in most cases there is no single criterion by which we can decide the question. The nature of the article, and the object, the effect, and the mode of its annexation, are all to be considered. In this Commonwealth it has been said that “ whatever is placed in a *523building subject to a mortgage, by a mortgagor or those claiming under him, to carry out the purpose for which it was erected, and permanently to increase its value for occupation or use, although it may be removed without injury to itself or the building, becomes part of the realty.” Southbridge Savings Bank v. Mason, 147 Mass. 500. Pierce v. George, 108 Mass. 78. This rule generally prevails also in other jurisdictions. Parsons v. Copeland, 38 Maine, 537. Holland v. Hodgson, L. R. 7 C. P. 328. Longbottom v. Berry, L. R. 5 Q. B. 123. McRea v. Central National Bank, 66 N. Y. 489. Hill v. National Bank, 97 U. S. 450. Harlan v. Harlan, 15 Penn. St. 507. Delaware, Lackawanna, & Western Railroad v. Oxford Iron Co. 9 Stew. 452. Roddy v. Brick, 15 Stew. 218, 225. Ottumwa Woolen Mill v. Hawley, 44 Iowa, 57.
We are of opinion that this rule is applicable to the case at bar. The building mortgaged was a cotton mill; and the machinery in controversy was all procured for use in manufacturing cotton cloth. Most of it was heavy; and there is much to indicate that, while there were changes in the kinds of goods manufactured, the machines were not of a kind intended to be moved from place to place, but to be put in position, and there used with the building until they should be worn out, or until, for some unforeseen cause, the real estate should be changed and put to a different use. Of most of them it is said in the agreed statement that they were fastened to the floor for the purpose of steadying them when in use ; but it is also said that this is not a statement of the only purpose for which they were fastened. They seem to have been attached to the building, and connected with the motive power, with a view to permanence. The loom beams are essential parts of the looms ; and although they are not fastened to the looms, but are laid upon them when in use, they are no less real estate than those parts of the looms which are annexed to the realty. No suggestion is made in regard to any other part of the property, which calls for a distinction between different articles.
We are of opinion that the agreed facts do not show that the machinery was personal property, for which trover can be maintained; and the entry must be,
Judgment for the defendants.