delivered the opinion of the Court:
There are two questions presented : First, whether the articles claimed by the plaintiff and alleged to have been converted by the defendant as chattels, were or were not fixtures to the realty at the date of the deed of assignment of the leasehold estate of November 3, 1893 ? And, second, if they were fixtures at that time, whether they were npt conveyed by the deed of assignment as part of the realty, beyond the control or operative effect of any mere parol agreement or understanding of the parties to that deed?
1. The question as to what will constitute a fixture, and thus become a part of the realty, though originally a mere chattel, is often a question difficult to decide, and especially in view of the great diversity of decisions upon the subject. All well considered cases, however, agree that there are certain conditions that must be shown to exist, in order to constitute a fixture that will pass by a conveyance of the realty, as against the party making the conveyance ; that, in cases as between vendor and vendee, or assignor and assignee of leasehold, it must appear, (1), that there is an actual annexation, according to the nature and use of the article, in its annexed position; (2), that the article was adapted to the use for which it was annexed; and, (3), that the article was fixed or erected with the intention that it should be a permanent accession to the realtju These essential constituents show that the question as to what is a fixture is a mixed question of law and fact. The intention of the owner at the time in attaching the chattel article to the realty must be considered, and if it appears that he attached the property with a view that it should remain in the position where placed permanently, it must be treated as part of the realty, and will pass as part of the realty in any subsequent conveyance or assignment of the owner’s interest therein. This intention must be inferred, to a large extent, *57from the nature of the article affixed, the general use and relation of the article to the building or principal structure, the mode of annexation, and the general purpose for which the annexation was made by the party authorized to control the relation of the realty and personalty. If the owner of the realty, as a general principle, provides anything of a permanent nature fitted for the purpose, and applies it to use upon the premises, by annexing the same, it becomes a part of the realty, and passes to the purchaser, though it might be removed without injury to the premises. 1 Washb. R. Pro. (3d Ed.), 15; 2 Sm. L. Cas. (5th Ed.), 252. It has been decided, and the decision would appear to have been approved in subsequent decisions, and by text writers of high authority, that shelves, drawers, and counter tables fitted in a store pass with the storeroom as part of the realty. Tabor v. Robinson, 36 Barb. 463; 1 Washb. R. Pro., Bk. 1, Sec. 26 ; Tyler on Fixtures, 520, 521 to 531; Brown v. Willis, 115 Mass. 156. There would seem to be no room for doubt in this case as to the intention with which the articles were affixed to the building, and the use to which they had been applied from the commencement. • The room had been used as a dry goods storeroom for a long series of years, and there was but the one object in placing the fittings in the room, and that was to complete and adapt the room to the business of a retail dry goods store. The annexation of the articles would seem, according to the evidence set out in the bill of exception, to have been of more than ordinary permanence in such fittings; and there is nothing shown in the evidence to indicate any design of a mere temporary use, or an intention to sever the articles from the building, so long as it remained a storeroom. The articles claimed by the plaintiff come within the full and exact definition of fixtures; and there was no severance of, or attempt to sever, those articles from the building before the agreement for sale of October 26, or the deed of assignment of the term of November 3, 1893.
*582. It is a settled principle, that where chattels are so far annexed to the realty as to acquire the character of fixtures, they become incident to the realty, and conform to the laws by which the realty is governed. And, under ordinary circumstances, fixtures can not be deprived of their character of real estate, and reinvested with that of the chattels, without actual severance, either by the owner of the realty himself, or with his assent, or by his authority. A sale by him without severance, may, it is said,, be binding as an executory agreement between the parties, but it will be invalid as against a third person. Rice v. Adams, 4 Harrington, 332. And it would seem to be settled beyond controversy, that an agreement for the sale of fixtures, while forming a part of the realty, is within the provision of the statute of frauds, and can not be excepted by parol from the operation of a deed absolute oh its face. Noble v. Bosworth, 19 Pick. 314; Austin v. Sawyer, 9 Cow. 39, 41; Bond v. Coke, 71 N. Car. 97; Aldrich v. Husband, 131 Mass. 480; Connor v. Coffin, 22 N. H. 538; Smith v. Price, 39 Ill. 28; Tyler on Fixtures, 531 to 540.
The deed of the 3d of November, 1893, from the plaintiff to the defendant, for the leasehold premises, conveys and assigns to the latter all the premises, “and every part and parcel thereof, with the appurtenances, and also all the estate, right, title, interest, etc., in and to the same,” without any exception or reservation whatever, in respect to the fixtures in the storeroom, or the articles claimed to have been converted by the defendant.
The parties to this deed bear the relation of vendor and vendee, or assignor and assignee, of the leasehold estate, and the articles alleged to have been converted by the defendant, being at the date of the deed affixed to the building and forming a part of the realty, the deed embraced and conveyed the fixtures as effectually as any other part of the premises. This principle is laid down in many well-considered cases, as in the ease of Noble v. Bosworth, supra, and *59parol evidence is not admissible to establish, an exception or reservation of the fixtures from the operation of the deed? the deed itself being silent upon the subject.
In the case of Bond v. Coke, 71 N. Car. 97, the principle is clearly stated by the court thus:
“ The deed, in this case, containing no exception of the gin and press, the legal effect of it is to pass them to the defendant, and no parol evidence to the contrary is admissible. The exception of them at the sale (as then alleged) being an agreement touching the sale of an interest in land» the statute of frauds requires it to be in writing. And even if the agreement reserving the gin and press had been in writing, it could only be set up by a bill in equity to reform the deed, on the ground of accident or mistake in the draughtsman.” And further on it is said : “Personal chattels which have become fixtures are incorporated in and are a part of the land, as much so as a house or tree, until an actual severance; and therefore a deed conveying the land, without excepting therein the fixtures, has the legal effect of passing the gin and press, which are part and parcel of the land.” •
The same principle is fully laid down and applied in the subsequent case of Horne v. Smith, 105 N. Car. 322.
The cases upon this subject are fully collected and classified, and the results of them stated, by the American editors, in their note to the leading case of Elwes v. Mawe, 2 Sm. L. Cas. 99—the note commencing at page 215 (4th Am. Ed.).
But apart from the application of the statute of frauds, and the operation of the deed of November 3,1893, the evidence offered by the plaintiff to- show an agreement or understanding in respect to the articles alleged to have been converted by the defendant, would seem, as set out in the bill of exception, to have been wholly insufficient upon which to found a contract, or an agreement of any sort, to except the fixtures from the operation of the sale and conveyance of the leasehold premises. That the plaintiff had, prior to the *60signing of the contract of sale of October 26, 1893, and also immediately after the execution of the deed of November 3, 1893, offered to sell to the defendant the fixtures in the store building, and that the defendant had refused to purchase the same, could hardly give rise, even by the most strained implication, to the inference of an agreement between the parties.
Upon the whole, we think the court was clearly right, upon the evidence before it, in directing a verdict for the defendant.
The judgment is affirmed.