Raymond v. Strickland

EyaNS, J. (After stating the facts.) The bill of exceptions recites that the court sustained the certiorari because the articles described in the possessory warrant were not chattels, and possession thereof could not be recovered by possessory warrant; so that the correctness of the judgment excepted to depends upon the classification of the articles as personalty or as fixtures attaching to the realty so as to become part thereof. Our code provides that “anything intended to remain permanently in its place, though not actually attached to the land, such as a rail fence, is a part of the realty and passes with it. Machinery, not actually attached but movable at pleasure, is not a part of the realty.” Civil Code, § 3049. Anything detached from realty instantly becomes personalty. Ibid. §3050. Section 3049 is peculiarly applicable to cases where the fixtures are erected by the owner of the realty, who subsequently sells or mortgages the premises. “When land is conveyed, whatever fixtures are annexed to the realty at the time of the conveyance pass with the estate to the vendee, unless there be some express provision to the contrary; and fixtures pass to a bona fide purchaser of the real estate, notwithstanding an agreement between the owner of the land and the vendor of the fixtures that they should remain personal property. The same rules as to fixtures which apply as between vendor and vendee apply also as between mortgagor and mortgagee.” Cunningham v. Cureton, 96 Ga. 492. See also Waycross Opera House Co. v. Sossman, 94 Ga. 100. Where the fixtures are placed on the premises, not by the owner or in pursuance of a contract with him, but by a tenant for his personal use or convenience, a much more liberal rule as to their severance obtains. The tenant can not cut or destroy growing trees, remove permanent fixtures, or otherwise injure the property. . Civil Code, §3119. “A tenant, during the term or a continuation of his tenancy, or while he is in possession under the landlord, may remove fixtures erected by him. After the term and possession are ended, they are regarded as [507] abandoned to the use of the landlord, and become the latter’s property.” Civil Code, §3120. This section of the code is to be construed to refer only to trade fixtures; and when so interpreted, it is in entire harmony with all the cognate sections of the code. Wright v. DuBignon, 114 Ga. 770. A further indulgence is allowed the tenant in removing such ornamental and domestic fixtures as may be annexed to the premises by the tenant for the more advantageous use thereof, provided no material injury results to the realty or to the substantial characteristics of the articles themselves. Domestic fixtures have been held to include ranges and stoves fixed in brick work, furnaces, gas fixtures, pumps, clocks, window blinds, bathtubs, and other chattels annexed for convenience; and the following articles have been considered ornamental fixtures: hangings, tapestry, and pier glasses nailed to the walls or panels of a house; marble chimney-pieces, cornices, etc. Bronson on Fixtures, §§34, 35, and eases cited in note. With regard to domestic and ornamental fixtures, it is very generally held that they may be removed by the tenant, and are to be considered personalty even though annexed; and that any wrongful act or refusal on the part of the landlord with respect to the removal of the tenant’s fixtures amounts to a conversion for which an action will lie. Bronson on Fixtures, §109c; Wright v. DuBignon, supra; Richards v. Gilbert, 116 Ga. 382. An action will not lie for domestic fixtures left annexed after the right of removal has expired. In the case in hand, the annunciator and chandelier1 are easily classified as domestic fixtures; the evidence shows that both could be removed without injúry to the ceiling or walls of the house. They were the personal chattels of the tenant, and she had the right of removal during her tenancy and possession. A wrongful entry by the landlord could not deprive the tenant of this right. Indeed the landlord did not controvert the tenant’s title to the articles, but held them as collateral for past-due rent. Presumably the landlord, by declining to return the fixtures to the tenant on demand therefor, did not question the tenant’s right of removal if the rent arrears should be paid. It appears that the tenant, while absent on a visit, left her servants in charge of the house, and before her return the landlord took, possession of the house and assumed dominion over the fixtures. On the tenant’s return, demand was made for the fixtures, but compliance with this demand was refused. The land- [508] lord bad no right to summarily, without any legal process, eject the servants of the tenant and in that way retake possession of the premises. Entelman v. Hagood, 95 Ga. 390. Nor would possession obtained by the unauthorized consent of the tenant’s servants defeat her right to entry before the termination of the tenancy to remove the fixtures. The landlord’s conduct amounted to a conversion of the fixtures, and the tenant had h-er remedy by possessory warrant to recover possession of them. The court erred in sustaining the certiorari. Judgment reversed. All the Justices concur.