(dissenting). The defendants in error, composing the firm of Berry Brothers of the city of Detroit, brought suit in trover to recover of Robert H. Morrison and Parmelia L. Morrison, his wife, the value of a certain machine for lighting dwellings with gas, and of the 'connected pipe, fixtures etc., which had been sold by Berry Brothers to Robert H. Morrison, and located and put for use in certain dwellings in the village of Sturgis. The contract of. purchase was made October 80, 1877, and the machine was put in and everything ready for use before the first day of February, 1878. The machine itself was buried in the ground, and the pipes ran from it into and through five dwelling-houses. Three of these it appears belonged at the time to Mrs. Morrison. No explanation is made by the record respecting the title to the others. The machine was on a lot belonging to Mrs. Morrison. It was claimed by the plaintiffs below — and the finding of the jury affirms the fact — that they sold to Mr. Morrison in reliance on his statements that he owned the houses, and that they would not otherwise have dealt with him. Their bill under the contract amounted to $1,056.27. Mr. Morrison paid them $25> and on February 1, 1878, executed and delivered to them his four notes of $225 each, payable respectively in four, five, six and eight months from date, with interest. For the balance he gave a draft on a bank at Sturgis. It is not claimed on either side that Mr. Morrison acted as. his wife’s agent in making the purchase, or that she was-*395in any manner privy to his representations. • She however lived at the time with him in one of the three houses, .and knew what was being done; and there was evidence in the ease that she expressed her satisfaction with the working of the machine, and said that no injury had been done in putting in the pipes. How the pipes were put in — whether inside or outside the walls — does not appear.
In March, 1878, the vendors seem for the first time to have learned that Mr. Morrison di'd not own the property, and that he had no pecuniary responsibility. An agent then went to see the defendants, but found only Mrs. Morrison; the husband being then absent and his whereabouts unknown. Some attempt was made to negotiate with Mrs. Morrison, and the agent offered to cancel Mr. Morrison’s indebtedness under the contract if she would give up what had been obtained under it, but she declined to do anything about it in the absence of her husband.' In the following month a formal tender was made to Mr. and Mrs. Morrison severally, of the notes and draft given by him, and of the $25 he had paid, and the machine, pipe, etc., were demanded of them; but they refused to receive what was tendered or to surrender what they had got.’ This action was then brought. It was conceded on the trial that the value of that portion of the articles purchased, which was upon the premises owned by Mrs. Morrison, was $833.16, and for this sum the plaintiffs, under the charge of the court, obtained a verdict.
The defense which is relied upon is that, by annexation to the freehold all the articles sued for became a part of the realty, and therefore 'trover would not lie for their conversion. The fraud was indeed denied in the court below, but as that was found by the verdict, we have no concern with the facts by which it was made out, and upon this record must assume its existence. The question now is whether, the fraud being assumed, the purchase and the annexation to the realty constituted the articles permanent fixtures.
*396The general rule is not disputed that when property is obtained through fraud, under color of a purchase, the vendor may rescind, and is entitled to demand and receive back the property' on returning within a reasonable time what he has received and placing the vendee in statu quo. Martin v. Ash, 20 Mich., 166; Wilbur v. Flood, 16 Mich., 40. But this case differs from ordinary contracts of purchase in the.fact that the party to whom the property has been delivered, and who now appropriates it, was in no manner connected with the fraud in' the purchase; and as personal dishonesty is not charged upon her, the case must be decided upon the assumption that she has been guilty of none, and that the wrong has been on the part of her husband exclusively,
On the other hand there is no pretense that Mrs. Morrison has dealt with her husband' in any capacity in respect to the articles in controversy. He was not her agent in buying them, nor did he buy and then sell to her. Had she purchased, them from him in good faith, without knowledge of his fraud, she would beyond doubt have been entitled to retain them, and the original vendors must incur all the risks of investing their vendee with the evidences of title to their property. But she has bought nothing; she has simply been quiescent while her husband has been making these improvements upon her premises.
Neither was there any claim in the court below that the machine, pipe and fixtures could not be removed without injury to the premises. The hole in the ground would necessarily be opened, but any injury from this would be insignificant, and as the pipe was put into the houses without injury, it would presumptively be taken out without injury. If the method in which it was put up rendered this impracticable, it would fairly devolve on the party proposing on this ground to appropriate the property of others, to make out the fact very clearly. No attempt was made to do so.
The case then is this: • The plaintiffs parted with *397their goócls under circumstances which entitle them to rescind the sale and recover them back or their value. The purchaser who obtained the goods from them by fraud, has affixed them to the realty of a third person, but under such circumstances that, had the realty been his, he could not have retained them. The third person, without a shadow of equity, now seeks to retain them on the purely technical ground that, by being affixed to her realty, their legal nature has been changed and they have become an inseparable part of her own property. This technical claim constitutes the sole defense in the case.
It was said in Adams v. Lee, 31 Mich., 440, that unity of title in the freehold and in that which is annexed to it, is essential in order that the latter may become a part of the realty. It is not pretended that there was any such unity of title here, unless the annexation itself brought it about; and to give to mere annexation that effect would leave to the case of Adams v. Lee no support whatever. The old notion that physical annexation should have this extraordinary effect-was said in Meigs’s Appeal, 62 Penn. St., 28, to be exploded, and that the question of fixture or no fixture must depend upon the intention of the parties. “There is,” says the Chief Justice in Wheeler v. Bedell, 40 Mich., 693-696, “no universal test whereby the character of what is claimed to be a fixture can be determined in the abstract. Neither the mode of annexation nor the manner of use is in all cases conclusive. It must usually depend on the express or implied understanding of the parties concerned.” To this effect are cited Crippen v. Morrison, 13 Mich., 23, and Robertson v. Corsett, 39 Mich., 777, among other cases. But who are the parties whose consent or understanding must control? It was said by Mr. Justice Ladd in Cochran v. Flint, 57 N. H., 514-547, that if it were held that if A, having in his possession the movable thing of B, annexes it without consent of the owner to the real estate of C, it would thereupon, and by force of *398that act alone, become the property of C, such a decision, so far as his investigations had extended, would stand alone, and would be so manifestly contrary to reason and justice, as well as the fundamental principles of law relating to the acquisition and ownership of property, that he could only follow it from a sense of duty that would amount to moral compulsion. We have been as much unable as that learned judge was to find any such decision. One man cannot give away the property of another in this manner. The consent of parties that shall convert a chattel into an inseparable part of realty is the consent of the parties owning the chattel and the realty respectively. D’Eyncourt v. Gregory, L. R. 3 Eq. Cas., 382-397: Reese v. Jared, 15 Ind., 142.
No doubt in this case Mrs. Morrison must be deemed to have assented to the things annexed becoming a part of the freehold. But the consent of the plaintiffs was obtained by fraud, and therefore, unless they saw fit to affirm it afterwards, was no consent at all. They do not affirm, but withdraw it, and therefore as between themselves and Mr. Morrison, it is as if it had never been given. Now unless some equities in favor of Mrs. Morrison are found to have intervened between the time when the purchase was made and the time when consent was withdrawn, it is impossible that she should occupy any position more favorable than does her husband. When she has paid nothing, done nothing, and suffered nothing whereby she is to lose in the event that the articles are withdrawn, she must stand in his shoes, and has no footing otherwise*
The equities in this casé are all against Mrs. Morrison. It was a part of the fraudulent purpose of her husband that the machine and its conveniences should be attached to her estate in order that she might hold and enjoy it as her own. When she refuses to restore what he thus fraudulently obtained, she is seeking to appropriate the fruits of his fraud. Had she bought the articles from her husband, and paid for them, the *399husband’s vendors might now be estopped from claiming them; but the elements of estoppel are wholly wanting. It appears to me to be. a plain case in which the defrauded parties demand their property, and no one is claiming any adverse right to it except such as the fraud itself can give.
The judgment, I think, should be affirmed with costs.