Latham v. . Blakely

Settle, J. Where the owner of the inheritance, in making improvements, attaches to the freehold articles of personalty for the better enjoyment of the estate, they become part of the realty, and pass to the heir, mortgagee or vendee, as against the executor, mortgagor or vendor. Elwes v. Mawe, 2 Smith L. cases and notes; Walmsby v. Milne, 27 E. C L. R. 114. And while the owner may undoubtedly detach fixtures and convert them again into personalty, yet he cannot do so after an execution has been levied upon the land to which they are attached. Here it is contended that the gin had been severed and re-converted into personalty by the plaintiff, (after, however, an execution had been levied upon the land,) and that Carter, the purchaser at the sheriff’s sale, had assented thereto, and that when the plaintiff, as lessee under Carter, replaced the gin in the house, it became a trade or agricultural fixture which he might remove. However that might be as between *371 the plaintiff and Carter, the rights of a third party, the defendant in this action, have intervened, who purchased when the gin was in its proper place and in good working order, without notice of any claim on the part of the plaintiff. But the defendant cannot even claim the benefit of the exception to the general rule, in favor of trade fixtures, as between landlord and tenant, for he failed to remove the gin before the expiration of his term. Bat in our review of the case that question is not represented. When the agent of Carter showed the gin to the agent of the defendant, before the contract of sale was made, he evidently conveyed the idea that the gin was a part of the realty, and it was not deemed advisable to spoil a good trade “ for an. old gin.” And it will be observed, that in addition to the sheriff's; deed, the plaintiff and wife, for the purpose of removing all clouds from the title, on the first day of January, 1870, also conveyed to Carter the said premises without any reservation whatever, and that on the same day the said Carter conveyed.! to the defendant, without reservation of the gin, or any notice-that it was claimed by the plaintiff. What the plaintiff did or said to Carter cannot effect the-rights of the defendant under these conveyances. In answer to the suggestion that the gin was not sufficiently attached to the house to make it a part thereof, we observe-that the later and better authorities pay more regard to the purposes which are to be served by the thing attached than to-the manner of making the actual attachmeht. In South Carolina it is held that a cotton gin in its place,. i. e., connected with the running works in the gin house, is a-fixture which passes to the purchaser of the house. Bratton v. Clawson, 2 Strobhart, 478. And this Court has held that planks laid down as an upper floor of a gin house, and used to-spread cotton seed upon, though not nailed or otherwise fastened down than' by their own weight, become a part of the gin house by being put in it for the purpose of being used *372 with it, and the Court says, “ in that view it makes no difference whether they were nailed to the sleepers or not.” Lawrence v. Bryan, 5 Jones 337. Let it be certified that there is error. Pee Cuei&k. Venire de novo.