Pickerell v. Carson

Stockton, J.

As to the first instruction asked by plaintiff's, and refused to be given by the court, we think it involved the whole question in dispute between the parties. The controversy between them was, whether the word “appurtenances ” embraced the loose, moveable articles of personal property in the daguerrean rooms of the plaintiffs. So far as such articles of personal property were to be considered as appurtenances to the daguerrean rooms, and to the business carried on therein by the plaintiffs, we think they were to be considered as embraced by the words “ appurtenances and the court, therefore, rightly refused to instruct the jury as asked.

The second instruction asked, had before been given by the court, in its charge to the jury, wherein they were told, that “ if the property replevied was legally included in the mortgage to defendant, under the terms “ fixtures and appurtenances,” the action could not be maintained.

So far as there was any uncertainty as to the property conveyed, dependent upon the meaning of the words used, the proper construction of the instrument of writing was to be determined by the court.

The words, “ fixtures and appurtenances,” have acquired a peculiar and appropriate meaning, and were to be construed according to such meaning, having due reference to the context, and to the connection in which the words are used.

The evidence, in this instance, abundantly shows that there were “ fixtures ” contained in the rooms of the plaintiffs. That all the right and interest of the grantor, F. NT. Pickerell, in and to the sky-light, balcony, partition, and all other property, confessedly embraced by the term ‘ fixtures,’ passed to the defendant, there is no controversy. These are not, however, the subject of the present action. Under the term, “appurtenances,” the defendant claims, also, the property included in the bill of sale from F. M. to O. F. Pickerell; and the court charged the jury, that they might consider the defendant as entitled to hold, under the term “ appurtenances,” all such property as pertained or belonged to the room, or as remained there permanently, and was used in carrying on the daguerrean business ; and that they might include in the same, all maps and pictures hanging on the wall, or affixed thereto, the stove and carpet, and all apparatus and furniture necessary for a daguerrean room, with the machines and stock in the room, and all things used in carrying on the business.

Fixtures are personal chattels annexed to the freehold, and which may be severed and removed by the party who has annexed them, against the will of the owner of the freehold. Loose, moveable machinery, or chattels, not attached or affixed to the freehold, and used in the prosecution of any business to which the freehold is adapted, cannot be considered as a part of the real estate, nor as appurtenant to it. 12 N. H., 205. Appurtenances signifies something belonging to another thing as principal, and which passes as incident to the principal thing. 10 Peters, 25. It seems to us, not to have been the intention of the grantor to convey to the defendant, the room itself, of which he held a lease; but only to convey the fixtures and appurtenances therein, and belonging to it, as a daguerrean room.

Judgment affirmed.