delivered the opinion, of the court:
First — The only relief, sought by the bill in this case, is to enjoin the removal of the building, chimney, boilers and machinery erected upon the mortg'aged premises. The defendant in error, P. C. Austin Manufacturing Company, made its motion to dissolve the temporary injunction for want of equity appearing on the face of the bill. This motion operated as a demurrer to the bill, and admitted the truth of all the allegations therein. A motion to dissolve the injunction leads to the same result as a demurrer to the bill, so far as the injunction is concerned. If the demurrer be sustained, or if the motion to dissolve be allowed, in either case the temporary injunction is dissolved, and, where no other relief is sought, the pase is virtually at an end. Where a complainant is willing to rest his case upon a demurrer, he must move the court to dismiss the bill. An order dismissing the bill is final, and from it appeal or error will lie, but a decision on the demurrer is merely interlocutory. So, an order dissolving an injunction is interlocutory; and, where the only relief sought'by the bill is an injunction, the complainant, upon the dissolution of the injunction, which is in effect a final order denying all relief, may dismiss his bill and appeal, or take out a writ of error. (Titus v. Mabee, 25 Ill. 257; Prout v. Lomer, 79 id. 331; Weaver v. Poyer, 70 id. 567; Brown v. American Stone Press Brick Manf. Co. 54 Ill. App. 647).
In view of what has been said, there was no error in the dismissal of the bill below by the complainant therein because, the bill being one for injunction only, the court entered an order dissolving the injunction, and thereby in effect made a final disposition of the case.
It is strenuously insisted by the defendants in error, that the injunction was dissolved because it was granted without notice to the defendants in the bill. The record does not show, that the injunction was dissolved because no notice was given, before it was granted, that it would be applied for. On the contrary, the final decree or order, entered by the court, recites that a motion was made to dissolve the injunction upon the face of the bill, and that this motion, after argument, was sustained by the court. If, however, there was any irregularity in the original issuance of the injunction, such as failure to give notice, such irregularity was waived by the motion to dissolve upon the face of the bill, inasmuch as such motion operated as a demurrer to the bill. “A motion to dissolve operates as a waiver of the irregularity.” (High on Injunctions, sec. 1615; Vipan v. Mortlock, 2 Meriv. 476; Angier v. May, 3 W. R. 330; O’Kane v. West End Dry Goods Store, 72 Ill. App. 297; Brown v. Luehrs, 79 Ill. 575). Our attention is called to section 3 of the act in relation to injunctions, which provides that an injunction shall not be granted without previous notice to the defendants of 'the application, unless it shall appear from the bill, that the rights of the complainant will be unduly prejudiced, if the injunction is not issued without such notice. (2 Starr & Cur. Ann. Stat. — 2d ed. — p. 2142). Even if the irregularity, arising from the failure to give notice, was not waived by the making of a motion to dissolve the injunction upon the face of the bill as above stated, it cannot be said, that it does not appear from the allegations of the bill here that the rights of the complainant would have been unduly prejudiced if the" injunction had not been issued without notice. The bill alleges, that defendants were asserting their right to remove, and threatening to remove, a building which constituted a part of the mortgaged premises, and the removal of which would undoubtedly have diminished the value of such premises.
Second — Inasmuch as the motion to dissolve the injunction operated as a demurrer to the bill, and admitted the truth of the allegations of the bill, the question arises whether the plaintiff in error was entitled to relief upon the face of his bill. In other words, we are to consider the case as though the question is, whether the court below could properly sustain a demurrer to the bill.
The bill must be regarded as a bill filed by a mortgagee to enjoin the commission of waste by the mortgagor. The decree of foreclosure, before its execution by sale of the mortgaged property, was assigned by Elizabeth Lawrence, the original complainant in the foreclosure bill, to Lucas R. Williams, the present plaintiff in error. The assignee of a decree succeeds to the rights of his assignor. (Franklin Savings Bank v. Taylor, 131 Ill. 376). Hence, the plaintiff in error, assignee of the decree of foreclosure, occupies the same position as though he were the original mortgagee.
The bill alleges, that the defendants in error claimed to own the buildings and machinery upon the mortgaged premises, and the right to remove the same, by virtue of some lease or contract made with Gay Dorn, the original mortgagor, and that such lease or contract was made subsequent to the appearance of Dorn and wife in the foreclosure proceeding. The defendants in error can occupy no better position than Dorn himself, the owner of the equity of redemption, and must be regarded, for the purposes of this case, as lessees or alienees of Dorn. The bill does not show the precise nature of the interest of the defendants in error in the building sought to be removed, but, whatever their interest is, it was acquired during the pendency of the foreclosure proceeding, and while such proceeding was Us pendens. Therefore, the defendants in error occupy the same position, as though they were original mortgagors. (Davis v. Connecticut Mutual Life Ins. Co. 84 Ill. 508).
The building, with the boilers, machinery and chimney as described in the statement preceding this opinion, was a fixture, permanently attached to the mortgaged premises. (First Nat. Bank of Joliet v. Adam, 138 Ill. 483). A mortgage covers the fixtures attached to the property, which is mortgaged. Whatever is annexed to the freehold, and will pass as between vendor and vendee, will pass as between mortgagor and mortgagee. (Miller v. Plumb, 6 Cow. 665; Union Bank v. Emerson, 15 Mass. 159). “The general rule as to fixtures between mortgagor and mortgagee is, that all annexations to realty pass by the mortgage to the mortgagee, unless by express terms the mortgagor except them from the terms of the conveyance. Annexations made after the execution of the mortgage are subject to the same rules as those made before.” (8 Am. & Eng. Ency. of Law, p. 50; McKim v. Mason, 3 Md. Ch. 186). Additions of a permanent character by way of improvements on mortgaged premises, made by the owner or mortgagor, are regarded as a part of the mortgaged estate. If the mortgagor affixes any property to it by the way of additions or otherwise, such property becomes a fixture in the general sense of that term, and, inasmuch as, by being a fixture, it is thus a part of the realty, it is subject to the mortgage. When the mortgagor thus makes a permanent annexation to the mortgaged premises, the article or thing so annexed becomes a part of the realty as between the mortgagor and the mortgagee, whether it was annexed to the premises before or after the making of the mortgage. Buildings and fixtures placed on mortgaged premises by the mortgagor cannot be regarded otherwise than as permanently annexed to the freehold. They go to enhance the value of the estate and will, therefore, inure to the benefit of the mortg'agee. (Arnold v. Crowder, 81 Ill. 56; Wood v. Whelen, 93 id. 153; Butler v. Page, 7 Metc. 740; Graeme v. Cullin, 23 Gratt. 266; Hunt v. Hunt, 14 Pick. 374; Baird v. Jackson, 98 Ill. 78).
It being established that fixtures thus annexed are included in the mortgage, a bill will lie for an injunction to prevent the commission of waste by a removal of such fixtures, inasmuch as such removal may impair the mortgage security. (Robinson v. Preswick, 3 Edw. Ch. 246). Chancellor Kent, in his Commentaries (vol. 4, mar. p. 161,) says: “The mortgagor may exercise the rights of an owner while in possession, provided he does nothing to impair the security; and a court of chancery will always, on the application of the mortgagee, and with that object in view, stay the commission of waste by the process of injunction. But an action at law by the mortgagee will not lie for the commission of waste because he has only a contingent interest.” In Nelson v. Pinegar, 3Q Ill. 473, we held that a mortgagee of land, whether he be regarded as the owner of the fee as against the mortgagor and all claiming under him, Or whether his mortgage is a mere security for the debt, has a right to an injunction to stay the commission of waste upon the mortgaged premises. An injunction is allowed in such cases, because it prevents a deterioration of the security of the mortgagee. (Robinson v. Litton, 3 Atk. 209; Brady v. Waldron, 2 Johns. Ch. 148; Cooper v. Davis, 15 Conn. 561; Salmon v. Claggett, 3 Bland’s Ch. 126; Murdock's case, 2 id. 461). In Dorr v. Dudderar, 88 Ill. 107, where a house was removed from mortgaged premises, we said: “The mortgagor had the right to use the premises, but no right whatever to commit waste or remove buildings, or do any other act which would impair the security of the mortgagee. Had the aid of a court of equity been invoked before the building was removed, its removal might have been enjoined,” The destruction of buildings must be regarded as waste, “if such destruction result in lasting injury to the inheritance as it will come to the reversioner.” (28 Am. & Eng. Ency. of Law, 885; Davenport v. Magoon, 13 Ore. 3). The mortgagee has a right to his whole security unimpaired during the life of the mortgage. Where the waste of the mortgaged premises is such as impairs the security of the mortgage, protection against such- waste will be afforded by injunction. (Coker v. Whitlock, 54 Ala. 180). It has been said that “the remedy by injunction is so peculiarly adapted to the redress of injuries which constitute waste, that it has supplanted to a large extent the remedies at law.” (28 Am. & Eng. Ency. of Law, p. 922).
Inasmuch as the removing of a building or improvement, permanently attached to the freehold, is per se an injury to the freehold, such removal will be regarded as waste. (Windship v. Pitts, 3 Paige, 259). Hence, a court of chancery will restrain such removal, whether the mortgagor be solvent or insolvent. Chancery will enjoin the commission of any act, which impairs the security. Counsel for the defendants in error claim, that the bill filed in this case is defective in not alleging that the defendants were insolvent. But the weight of authority is in favor of the position, that an allegation of insolvency is not necessary. In American and English Encyclopedia of Law, (vol. 28, p. 933,) it is said: “The appropriate remedy for a mortgagee against a mortgagor in possession, who is impairing the security by committing waste, is by bill in chancery for an injunction; it is not necessary to allege or prove the mortgagor’s insolvency.” (See, also, Taylor v. Collins, 51 Wis. 123; Fairbank v. Cudworth, 33 id. 358; Northrup v. Trask, 39 id. 515; State Savings Bank v. Kercheval, 65 Mo. 682; 10 Am. & Eng. Ency. of Law, p. 875; State v. Northern Central Railway Co. 18 Md. 213; Dudley v. Hurst, 67 id. 44).
In view of the principles thus announced, and of the authorities above referred to which sustain those principles, we are unable to see why the bill in this case did not contain such allegations, as, if proven, would entitle the plaintiff in error to an injunction. The removal of the building upon these premises, with the boilers and machinery attached to it and the chimney connected with it, would certainly have amounted to a waste of the mortgaged premises, and the plaintiff in error was entitled, under the authorities cited, to an injunction to prevent such waste, inasmuch as, thereby, his security would be impaired.
It is insisted, however, by counsel for defendants in error, that the allegations in the bill as to the impairment of the security by the waste charged are not sufficient to warrant the granting of the relief prayed for. The contention is, that the complainant in the bill should have shown thereby, that his security would be rendered inadequate by the threatened removal. It is said in the authorities, which are above quoted, that an injunctión in favor of the mortgagee against the mortgagor to prevent waste will be granted where the waste is such as will impair the security. (Minneapolis Trust Co. v. Verhulst, 74 Ill. App. 350). In American and English Encyclopedia of Law, (vol. 10, 875), it is said: “Where a party includes certain fixtures in the mortgage of real estate, he may be enjoined from removing the same, as such removal might impair the mortgage security. And fixtures attached to the soil by the mortgagor after the execution of the mortgage become a part of the mortgage security.”
Counsel for defendants in error refer to a number of cases which are alleged to hold that, in order to justify an injunction against waste, the waste must be such as renders the security inadequate or insufficient. (Buckout v. Swift, 27 Cal. 423; Van Wyck v. Alliger, 6 Barb. 511; Vanderslice v. Knapp, 20 Kan. 647; Moriarity v. Ashworth, 43 Minn. 1). Some of the cases thus referred to by counsel make use of the word, “impair,” as well as of the word, “inadequate,” and seem to treat them as convertible terms. Certainly, the impairment of the security may be so great as to make it inadequate. If, however, the strict rule contended for by counsel for the defendants in error should be regarded as the correct rule in this class of cases; we deem the allegations of the present bill sufficient. When examined carefully they amount to a statement that, by the removal of the building and fixtures, the security will not only be impaired, but will be insufficient or inadequate. The bill charges that, if the building, machinery and fixtures in question are removed “the security of the complainant will be impaired, and the amount the same will bring at foreclosure sale largely decreased, and the complainant irreparably injured * * * and his interests unduly prejudiced.” The allegation of irreparable injury and of “interests unduly prejudiced,” taken in connection with the other allegations, implies that the security would be rendered inadequate. Unless the value of the security was reduced by the removal of the building and fixtures, so as to render it probable that, upon a foreclosure sale, the property would not bring enough to pay the amount of the decree, the injury could not be irreparable, nor the interests of the mortgagee be unduly prejudiced.
We are of the opinion, that the judgment of the Appellate Court and the decree of the circuit court are erroneous. The bill was sufficient upon its face to entitle the plaintiff in error to relief, if its allegations could be established by proof, and the injunction should not have been dissolved, but the bill should have been retained for answer, and for a hearing of the cause after proofs taken.
The judgment of the Appellate Court and the decree of the circuit court are reversed, and the cause is remanded to the circuit court for further proceedings in accordance with the views herein expressed.
Reversed and remanded.