The argument by which the rails in question are converted into real estate, in order to bring them within the purview of the grant of the defendant, is substantially as follows. Rails made into fence and attached to the freehold become part of the land. The rails in question were made into fence and attached to the land conveyed to Palmer. Therefore as between vendor and vendee, Brown's rails were a part of Mott's land: and it being admitted that Mott the defendant neither owned the rails nor "was seized of an indefeasible estate of inheritance therein," at the delivery of the deed, he is liable for breach of his covenants. This is plausible. The infirmity of the syllogism consists in what logicians call the petitio principii. It assumes the very point in issue, namely, that the rails in question were attached to the land so as to become parcel of the premises. This proposition, which is indispensable to the maintenance of the action, is not only unsupported by proof, but was conclusively disproved by the evidence. Brown, the tenant, swore "that he cut the rails upon his own lands, and put them in fence upon Mott's land for the purpose of cutting a piece of grass upon the premises, under an agreement with Mott that if he would build the fence there he might move it off whenever he pleased." *Page 578
The question is, were these rails, under the circumstances, attached to the freehold? Is there not something of an absurdity in asserting that the property of one man placed upon the land of another with the unlimited right of removal becomes thereby a part of the inheritance? The assumption, it is believed, has no foundation in principle or authority. Rails upon a fence are constructive fixtures. (3 Kent's Com. 347, n.) They are in their own nature personal property, and become parcel of the realty, as the term fixture imports, in virtue of their annexation to the land. (Id. 345, n.) The annexation which will convert personal into real estate, is not affected by placing the chattel upon or even by affixing it to the land: it must be fixed to the freehold perpetui usus causa. (Id. 347and note; Walker v. Sherman, 20 Wend. 647, 655; 3 Dane'sAbr. 156; 4 Adol. Ellis, 884.) Hence, if the annexation is made by virtue of a contract with the owner of the land for the purposes of trade, (3 Kent, 345; 2 R.S. 83, §§ 6, 7, 8,) or of agriculture, (Whiting v. Brastow, 4 Pick. 310,) the chattel does not become a part of the freehold, but remains personal property. In this case, the fence was built for the purpose of cropping a part of the land under a contract with the owner which secured to the tenant the right to remove it at pleasure. The rails of which it was composed were never attached to the freehold, and were consequently personal property at the time of the conveyance to the plaintiff. And the covenant of seizin could have no more application to them, than to the vehicle by which they were transported to the premises.
Again, it was urged that the grantor was estopped from denying that the fence which was upon the premises in question and apparently attached thereto, was parcel of the land conveyed. This was the view taken by the judge at the trial, who ruled accordingly. If the defendant was estopped, it must be upon the ground of his grant or his covenant, or both. But the grant is ofland, and the defendant covenants that he owns the landdescribed, and is seized of an estate of inheritance therein. He declares by his covenant, that all the land, in other words allthat is land within the bounds given in the *Page 579 deed, he owns and has in it an estate of inheritance. It is a palpable perversion of such a contract to turn it into a warranty that every thing upon the land (which would pass with it if attached) is in fact a part of the freehold. No authority sanctions such a principle. We have been referred to cases in which it has been held that crops growing pass to the vendee as incident to the land, and that the vendor is not permitted to contradict the effect of his deed by setting up a parol exception at the time of the conveyance. But in all these cases, the property sought to be exempted from the operation of the grant was the property of the vendor attached to or appurtenant to the land. Crops will thus pass; so also will a right of way; but if either be severed from the land prior to its conveyance, by sale or release, the vendor is not estopped from showing the fact, nor is he liable upon his covenant of seizin. He is owner of the land and seized thereof notwithstanding the severance. The ownership of the property determines its character, whether it is part of the freehold, or an appurtenance, or a mere chattel. (4 Kent, 468.)
It has been held in effect that a grant of liberty to dig turf, or of the herbage, (Com. Dig. tit. Grant,) or of an easement, as the right of way, (2 R.S. 90,) or of particular trees, (4Coke, 63,) although made prior to the sale of the land, is not a breach of the covenant of seizin. The reason is assigned by Coke — "for these passed to the first grantee but a particular right." In these cases the turf, herbage, trees, and road (if opened) would apparently be annexed to the land, or as Coke expresses it in reference to trees, in property they are divided from the land although in fact annexed. (4 Coke, 63.) The same is true a fortiori of a constructive fixture. (Ropp v.Baker, 4 Pick. 243.)
But the plaintiff in his declaration avers that the rails wereattached to the freehold and premises described in the indenture, and were part and parcel thereof." This was a question of fact, the affirmative of which the plaintiff was bound to establish. Until this was done, the fence was not within the grant, and of course the deed could not be relied upon as an estoppel. It was in *Page 580 fact a question of parcel or no parcel, upon which both parties were at liberty from the necessity of the case to give evidence, in order to identify the subject of the conveyance.
And finally, no precedent from the earliest period can be found of an action of this character. The books are full of controversies between vendor and vendee as to the effect of a grant upon property claimed as fixtures. But this is the first attempt to extend the covenant of seizin to personal property, upon the ground that the vendee probably supposed that it was part of the freehold. There are substantial reasons for this silence. The covenant of ownership and of seizin are broken, if at all, upon the delivery of the deed. If at that time the supposed fixture is really such, it passes by the grant; if it is not a fixture, it remains a mere chattel, and cannot be the subject of covenants which are restricted to the land only. In neither case, consequently, can there be a breach of the covenants. Hence the declaration in this cause is a felo de se, and must be so in every case of a similar character. For example, the plaintiff avers, 1st. That the rails were attached to the freehold, and are parcel of the premises. This averment was necessary in order to bring the subject within the grant. And 2d. by way of breach, "that they were not at the time of the conveyance the property of the defendant." The two propositions are utterly repugnant. For if the rails were owned by a person having no interest in the land, they were for that reason personal property, and therefore could not be a part of the freehold. If on the contrary they were parcel of the land, they could not be the property of a person having no interest therein, and of course would pass by the grant. In Rogers v. Woodbury, (15 Mass. 158,) the action was trover for a fish house; and it was held by the court, "if the owner of the land did not own the building, and if the owner of the building had no interest in the land, the building was personal property." In the case before us, the owner of the land did not own the fence, and the owner of the fence had no interest in the land. (Smith v. Benson, 1Hill, 176; 4 Coke, 63; 3 McCord, 553; 8 Mass. 411; 1Fairf. R. 429.) *Page 581
I am of opinion that the charge of the judge was erroneous and that there should be a new trial.
JEWETT, C.J. and JONES, J. also dissented, and concurred in the opinion of GARDINER, J.
Judgment affirmed.