The opinion of the court was delivered by
Beasley, Chief Justice.The questions to be decided relate to the Mechanics’ Lien law.
The facts were these, viz.: Moore was the owner of the premises in question, and commenced the erection of a building thereon. Before this structure was finished he sold and conveyed the property to one Zimmerman, entering into .a written agreement with him to proceed and complete the building “in a good and workmanlike manner.” This agreement was signed by both Moore, the vendor, and by Zimmerman, the vendee. On the day of the conveyance, and before its execution, Moore made and delivered a mortgage on the lot to one Casselman, who, in the following year, assigned it *459to Souder, one of the defendants, and Zimmerman conveyed the premises to the other defendant, Ellison.
After the passing of the title, as mentioned,'by Moore to Zimmerman, the former, in execution of his contract, proceeded to complete the building, and in the course of that work employed the claimant, Erdman, to furnish and put in a portable furnace and a portable coolring-stove, and it is for doing this that a lien on the building and land is now claimed.
To this demand two defences are sought to be erected, the first of which is, that after his conveyance of the premises to Zimmerman, Moore, the former owner, could not encumber the property with a lien, and that, in any evént, a lien so imposed could not affect the prior mortgagee.
But this objection cannot prevail. The statute provides that when a building is erected by a person other than the owner, it shall not be liable to a lien “ unless such building be erected by the consent of the owner of such lands in writing.”
That the consent thus called for was given in the present instance seems indisputable, for the contract signed by both the vendor and the vendee, in express terms, obliged the former to go on and finish the building then under way.
With regard to the mortgage, the explanation appears to be equally plain. When the mortgagee took his encumbrance, he knew that the building was erecting, and that any lien that could be legally put upon the premises in the course of the" completion of thé structure would be superior to his mortgage. With this knowledge he is chargeable, for the statute provides that upon a sheriff’s sale, under a judgment upon the lien claims, the purchaser shall acquire the estate which the owner had in the lands at the commencement of the building, and subject only to such mortgages as had been created and recorded prior to that event. The mortgage before us, not having been in existence at the time of the commencement of the building, must be subordinated to the claimant’s lien. Gordon v. Torrey, 2 McCart. 114.
*460The second and remaining question touches the lienabi.lity of the claim of the plaintiff.
It has been shown that consisted of a portable furnace and a portable cooking-stove or range, neither of which was bricked in or otherwise incorporated with the building. The heater rested on a cemented floor, the pipes from it running into the chimney-flues, and similarly with respect to the range.
Erom this statement it is clear that neither of these appliances could be deemed fixtures simply by reason of their physical connection with the building. It must be conceded that such connection was of the slightest character. It would not have injured either them or the structure, in the slightest degree, to have removed them.
. Nevertheless, although accepting this as the necessary inference, in my . opinion, this heater and range are, under the proofs- before the court, to .be considered and treated as parts of. the realty. The ground of this conclusion is that it was the intention of the owner of the building to make them such. With, regard- to such purpose no question has or could have been made. The owner of the, property, who started the building, agreed to complete it, and in fulfillment of that contract put in these appliances. They were passed by the conveyance of the land from the vendor to the vendee. The owner of the land, therefore, meant these things to be a complement of the building, and they, from their nature, were fitted .for that purpose, and, although slightly attached to the building, thereby, as it is deemed; became part of it.
This conclusion has been reached by applying to the facts before us the legal rule upon the subject in its modern and most approved form. With regard to such legal principle; it is common knowledge that the legal decisions stand-in an attitude of helpless variance. All attempts to harmonize them have proved utter failures, and on that account it is felt that nothing would be gained by a special reference to the reported cases. ' Mr., Phillips, in the last edition of his excellent treatise on Mechanics’ Liens, in a few sentences, has expressed what he considers the true rule to be applied in these cases. He *461says, quoting from a judicial decision: “The weight of the modern authorities establishes the doctrine that the true criterion for determining whether a chattel has become an immovable fixture consists in the united application of the following tests: 1. Has there been a real or constructive annexation of the article in question to the realty? 2. Was there a fitness or adaptation of such article to the uses or purposes of the realty with which it is connected ? 3. Whether or not it was the intention of the party making the annexation that the chattel should become a permanent accession to the freehold.” And, further, the author remarks: “And of these three tests pre-eminence is given to the question of intention. Heaters and ranges are fixtures. Whether a given article is a fixture or not depends on the intention, and that, in general, is judged mainly by the method of attachment and the use.”
Applying the doctrine thus clearly stated to the facts of the present case, no room is left for doubt. The chattels in question have, in a legal view, become consolidated with the realty, and, consequently, the premises are subject to the lien of the claimant.
With respect to the case of Rahway Savings Institution v. Irving Street Baptist Church, 9 Stew. Eq. 62, which was much relied on by the counsel of the mortgagee, it is sufficient to remark that the principle as just stated, so far from being controverted by it, is expressly admitted, for in his exposition of the law of the subject the Chancellor says: “ There are numerous adjudged cases in which stoves have been held to be fixtures, but it will be found that in all of them there was either actual annexation to the freehold or other evidence of intention to make them permanent additions thereto.”
Whether the rule thus defined was properly applied to the facts of the reported case is of no importance in our present inquiry.
Let the Camden County Circuit Court be advised of .the views above expressed.