On Petition eor a Eehearing.
Bicknell, C. C. —In this case the owner of personal property permitted it to be made a fixture upon real estate which was already covered by a mortgage. The property was machinery for a flouring-mill. The old machinery was torn away and the new machinery, substituted therefor, was permanently affixed to the freehold, without the knowledge or consent of the mortgagee. The mortgagee foreclosed his mortgage, bought in. the property at the foreclosure sale, and sold it to the appellee, who was a purchaser for a valuable consideration without notice.
No agreement made by the mortgagor could bind the mortgagee ; it would be inequitable to compel the mortgagee to take the mill in a dismantled condition; personal property, thus voluntarily affixed to mortgaged real estate, necessarily becomes subject to the mortgage; there is no semblance of equity against the mortgagee in favor of the party who thus, permits his personalty to become real estate, having notice of the mortgage by the record. Property, which has thus become real estate, can not be changed again so as to become personalty without the consent of the mortgagee.
Upon the foreclosure of such a mortgage, and the purchase by the mortgagee at the foreclosure sale, he buys the property as it stands, and not a dismantled mill, with its machinery and furniture gone; his subsequent sale of the mill to a *531bona fide purchaser for value, without notice, will transfer the property as it stands. The former owner of such machinery is in no better condition than any other person who voluntarily annexes a fixture to real estate without consent of the party in interest, having notice of the interest. The cases cited in the principal opinion are decisive.
Filed April 2, 1885.The petition ought to be overruled.
Per Curiam. — The petition for a rehearing is overruled.