Voorhees v. . McGinnis

*282 Hunt, C. The plaintiffs claim that the property in question forms a part of the realty. They are the owners of the realty by purchase, and hence insist that the articles belong to them. The title of the defendants is based upon the claim that the articles are or were to be deemed of a personal character. They are the holders and owners, under chattel mortgages, executed by the former owner, Philip Kimmey. The referee and the General Term of the third district held that the property was of a personal character, and gave judgment for the defendants. There are several tests, in the form of general principles, that will aid in the determination of the present question. 1. The rule is quite uniform that to give to articles, per sonal in their nature, the character of real estate, the annexation must be of a permanent character. There are exceptions to this rule, in those articles which are not themselves annexed but are deemed to be of the freehold from their use and character, such as mill stones, fences, statuary and the like. (Potter v. Cromwell, 40 N. Y. R., 287; Capen v. Peckham, 35 Conn. R., 88.) 2. A second test, but not so certain in its character, is that of adaptability to the use of the freehold. (Voorhis v. Freeman, 2 Watts & S., 116; Pyle v. Pennock, id., 390.) 3. A third test is that of the intention of the parties at the time of making the annexation. (Potter v. Cromwell, supra; Murdock v. Gifford, 18 N. Y., 28; Winslow v. Merchants’ Ins. Co., 4 Metc., 306; Swift v. Thompson, 9 Conn. R., 63; Capen v. Peckham, 35 Conn. R., 88.) The circumstance that the machinery may or may not be removed without great injury to building or to itself, is not now deemed to be controlling. In Potter v. Cromwell (supra) the tests are declared to be, first, actual annexation; second, the use or purpose of the application of the machinery: third, the intention to make the annexation a permanent accession to the freehold. In Washburn on Real Property (vol. 1, p. 7), the rule is thus laid down, as between vendor and vendee, and mortgagor *283 and mortgagee : “ If the owner of lands provides anything of a permanent nature, fitted for and actually applied to use upon the premises by annexing the same, it becomes a part of the realty, though it might be removed without injury to the premises.” The cases cited in support of this proposition show, also, that the same rule applies, whether the article in question be annexed to the premises before or after making the mortgage. Upon the page following (8) he adds: “ It may be stated that whether a thing which may be a fixture becomes a part of the realty by annexing it, depends, as a general proposition, upon the intention with which it is done. Between vendor and vendee, or mortgagor and mortgagee, it has been held that gas fixtures, including a gasometer and apparatus for generating gas, would pass with the house in which they were in use, but not between tenant and landlord, if put in by the tenant. Steam boilers and engines used in a marble mill, and supplying the power by which it is carried, pass as a part of the realty, by a mortgage of the estate by the owner. But the saw frames in such mill were held to be personal chattels. If a steam-engine, for instance, be placed in a shop or factory, to create the moving power by which it is carried on, the engine and shafting necessary to communicate the motive power to the machinery would be as much a part of the realty as a water-wheel, and would pass with the realty by deed or mortgage. The shelves, drawers and counter tables, fitted in a store, pass with the store as realty, * * and things which may be fixtures often become so, or otherwise, from the circumstance that they have been actually fitted for and applied to the realty.” Kent says (vol. 2, p. 343, et seq.): “ There are many chattels, which, though they be of a movable nature, not being necessarily attached to the freehold and contributing to its value and enjoyment, go along with it in the same path of descent or alienation. * * * The law of fixtures is in derogation of the original rule of the common law, which subjected everything affixed to the freehold to the law governing the freehold, and it has grown up into a system of judicial legis *284 lation, so as almost to render the right of removal of fixtures a general rule, instead of being an exception. * * * The character of the property, whether real or personal, in respect to fixtures, is governed very much by the intention of the owner and the purposes to which the erection was to be applied.” He further says: “ Questions respecting the right to what are ordinarily called fixtures, or articles of personal property affixed to the freehold, principally arise between these classes of persons. 1st. Between heir and executor, and there the rule obtains with the utmost rigor in favor of the inheritance, and against the right to consider as a personal chattel anything which has been affixed to the freehold.” The same rule, he declares, obtains between vendor and vendee, or between mortgagor and mortgagee. The Revised Statutes of this State (2 R. S., 82, § 6, sub. 4) probably intended to put the executor upon the same footing with the tenant, and to give to him, in preference to the heir, such articles as a tenant might hold against his landlord. The effect of ibis provision is discussed by Chancellor Walworth in House v. House (10 Paige R., 158). It cannot, however, alter the law as to the relation of vendor and vendee, whatever may be its effect as between heir and executor. As to the former, still the law remains, as Kent declares it to be, •in its utmost rigor, in favor of the inheritance. The law upon this subject has been so recently reviewed in the Court of Appeals of this State, in the case of Potter v. Cromwell (supra), that it would hardly be justifiable now to go over the cases in detail. It certainly is not necessary. The English- cases go much further than our own in the direction of the principles already laid down. I cite a few of the more recent ones. ( Walmsley v. Milne, 7 C. B., N. S., 115; Cullwick v. Swindell, 3 Law R. Eq., 249, Dec., 1866; Boyd v. Shorrock, 5 Law R. Eq., 72; Climie v. Wood, 3 Law R. Exch., 257; 4 id., 328, on appeal.) The referee finds specially that said boilers and the steam engine were erected in a building put up for the purpose of containing and using the same or other like machinery therein, and were placed upon solid brick *285 foundations resting upon the ground, excvated for the purpose. The said foundations were laid in mortar and built in a permanent and substantial manner, and the engine and boilers were bolted into such foundations. That a stack of brick- chimney, 100 feet high, was built as part of the building aforesaid for the use of the boilers or such other boilers as might be placed there, and was used for such boiler fires. That said boilers were of several tons weight; and the engine, with its iron bed plate, was also of several tons weight. That the brick-work of the foundation for the boilers was carried up and laid over the body of the boilers; but the bricks which covered the top of the boilers were not so laid as to be able to sustain themselves in position without the support of the boilers. The engine and boilers were, notwithstanding, capable of being removed without injury to the walls of the building, and without injury to the foundations on which they were laid, except that the removal of the boilers necessarily involved the displacement of the bricks covering the top of them. That the shafting and gearing, embraced in the schedule, was all fitted to the special use of transmitting power from the engine to the particular machines which were employed in the building, and was, in length and adjustment, adapted to the building where it was used, and was not of value, except as old material, in any other place, unless such other place, in its local arrangements, was nearly the same as the said mills. That it was all constructed with special reference to the place in which it was to be set up, and was there firmly fastened and bolted in the beams and timber of the building, but was, nevertheless, capable of being removed without injury to the walls of the building by the removal of bolts, screws and similar fastenings. That said boilers, engine, shafting and gearing were erected in as permanent and substantial a manner as is usual, and as is adapted to the nature and objects of their employment, and without any special intent, on the part of the said Kimmey, who put them up, as to making them a part of the freehold, *286 and without any intention as to removing them at any future time. In relation to the engine and boilers, shafting and gearing, it would seem to be clear that they were actually and permanently annexed to the freehold, adapted to use in that position, and intended to be a permanent accession to the freehold. Kimmey, who was the owner and erected them, had no intention of removing them at any future time. That he had no special intent to make them a part of the freehold is in harmony with general experience. A man who builds a mill or a house for his own use and occupation, with everything useful and convenient for the purpose, seldom has any special intent that the creation shall be a part of the freehold, or that its auxiliaries shall constitute a part of the freehold. He builds as he wishes, having no reflection as to the legal character of the structure, thinking nothing, and generally knowing nothing, and therefore having no special intent on the subject. It is further found that the planing machine, fire pump, saw benches and saws were worked by bands and other modes of transmitting motion from the engine, through the gearing and shafting above mentioned, and were complete in themselves as machines, as were also the copper pipes for steaming hubs, and were of equal use and value wherever they were wanted, and were affixed to the building only for convenience in using, and were capable of removal without injury to the building or to themselves. There is greater doubt whether these articles come within the rule which would make them fixtures. They are less permanent in their character; the actual annexation is much slighter, and their use evinces less evidence of an intended accession to the freehold. They may well be held to be chattels and to pass under the chattel mortgages. I am of the opinion that upon general principles, that is unless there be some specific agreement to the contrary, or some circumstances controlling the general rule, that the boilers and engines, shafting and gearing, became a part of *287 the realty, and passed to the plaintiff upon his purchase. It is said that the execution by Kimmey of a chattel mortgage upon it, before it was placed in the mill, would be sufficient to preserve its personal character. Although unknown to the plaintiff, this fact existed in the case. It comes to this : A man employs a carpenter and mason to build a brick house for him upon his lot, and pays them in full the price agreed upon. The mason puts his brick in the walls. The carpenter places his joists and timbers in the proper places in the house. The house is finished and is occupied by the owner. It then appears that the maker of the brick held a chattel mortgage upon them, executed by the mason, and that the sawyer of the timber held a chattel mortgage upon it, executed by the carpenter. Are these articles, now a part of the house, still held upon the chattel mortgages, so that the erec tors can despoil the house to obtain their possession, or com pel the owner to pay their value 1 I take it they are not.' Their character as personal property is ended. They have become a part of the house; they are real estate; will pass under a deed of the land ; may be subjected by a mortgage of the land, or may be held by the owner of the house. (Fryatt v. Sullivan Co., 5 Hill., 116; Pierce v. Goddard, 22 Pick. R., 559; 1 Nash Real Prop., pp. 5, 6.) “ The remedy of the party is against those who wrongfully converted the personal into real property.” (Bronson, J., in Fryatt v. Sullivan Co.) The remark of Daniels, J., in Potter v. Cromwell, that this fact would alter the character of the property, was not well advised, and cannot be sustained upon authority. Judgment should be reversed and new trial ordered, costs to abide the event.