Hey v. Bruner

The opinion of the court was delivered, February 25th 1869, by Agnew, J. It is a familiar principle, and the authorities cited abundantly show, that a tenant who erects fixtures upon leased property for the benefit of Ms trade or business, may remove them from the demised premises within his term. And where a tenant has the right to sever and retain them they are liable to be. seized and sold in execution and severed by the purchaser. The judge at Nisi Prius so held and the plaintiff recovered. The tenant’s right in this case depends on the terms of his lease.' He covenanted to make alterations, additions and improvements of a permanent character to an extent of $1500. These permanent additions and improvements he undoubtedly covenanted that his landlord should retain at the expiration of the lease. He also covenanted to introduce machinery necessary to the purposes of his business as a manufacturer of hosiery, and the evidence shows that he had to put in a boiler, engine, shafting, &c., in order to carry on his business. But there was no covenant that any of this machinery should be retained by the landlord. A building twenty-four feet wide, sixty feet long, and three stories high, costing $2200, was put up by the tenant, and was evidently a permanent improvement which satisfied the covenant to suffer such additions and improvements to remain. That a boiler and engine put up by a tenant are movable fixtures, is beyond doubt. See Hill v. Sewald, 3 P. F. Smith 271, and authorities therein collected. There being nothing in the lease to enable the landlord to claim the boiler, engine, shafting, &c., put in by the tenant, the title remained in the tenant at the time of execution levied. The plaintiff seems to think that the covenant to introduce machinery suitable to the tenant’s business gave the landlord a title. But clearly in the presence of an express covenant to leave to the landlord only the permanent additions and improvements to be made agreeably to a specification and plan to be approved by the landlord, no inference can be drawn that the tenant was to leave [91] also his machinery and other things introduced for the effectual prosecution of his business as a manufacturer. The question is one of title, and a plea of property must he supported by proof of a superior title on part of the landlord. This was not shown, and the defendant necessarily failed in his plea. Judgment affirmed.