Harkness v. Sears

RICE, J. —The exceptions to the action of the court below present the question, whether the vendor, after the sale and conveyance of his land, can lawfully remove fixtures erected on it by himself, for his - own use, during his ownership and before the salo and conveyance ; it appearing that the fixtures were erected for the purpose of assisting him in his trade, and used by him alone for that purpose. The general rule of the common law subjected everything affixed to the freehold to the law governing the freehold. This rule never was universal, nor inflexible, nor without exceptions. It was applied most rigorously between executor and heir, in favor of the latter; with more liberality be [497] tween tenant for life, or in tail, and remainder-man, or rever-sioner, in favor of the former ; and with still greater generosity between landlord and tenant. An exception in favor of fixtures erected for the purposes of trade, seems to have been almost as ancient as the rule itself.—Elwes v. Maw, 3 East’s R. 38. The common law of England, however, (as has been well remarked by the Supreme Court of the United States,) is not to be takeD, in all respects, to be that of America. Our ancestors brought with them its general principles, and claimed it as their birth-right; but they brought with them, and adopted, only that portion which was applicable to their condition. The country was a wilderness, and the universal policy was to procure its cultivation and improvement. The interest of the owner of the soil, as well as public policy, in America, required that erections for agricultural purposes, put upon the land by a tenant, should receive the same protection in favor of the tenant, that was extended by the common law of England to fixtures made for the purposes of trade. But it is certain, that the general doctrine of the common law of England, as to things annexed to the freehold, so far as it respects heirs and executors, was adopted by our ancestors, and became part of the common law of America. And the same rule as to fixtures, that applies between heir and executor, applies equally as between vendor and vendee. Van Ness v. Packard, 2 Peters 137; 2 Kent’s Com. 343 to 347; English v. Eoote, 8 Sm. & Mar. 444; Miller v. Plumb, 6 Cowen 666; Despatch Line v. Bellamy Man. Co., 12 N. H. 232; 20 Johns. 30; 1 Harr. & Johns. 291; 10 Barb. Sup. C. Rep. 496; see, also, the numerous cases cited by the counsel of appellee. It is settled by the adjudicated cases, as part of the common law of America, that as between vendor and vendee, the stationary machinery by which turning-lathes, or any of those machines which are portable and of equal use everywhere, are impelled, must be regarded as irremovable fixtures and part of the freehold, whenever such stationary machinery shall have been erected on the land by the vendor himself during his ownership, for his own use, and fixed in or to the ground, or to some substance already become a part of the [498] freehold, — whether erected for the purposes of trade or agriculture ; and that such stationary machinery passes by the deed of the vendor to the vendee, conveying the land on which it stands.—Preston v. Briggs, 10 Verm. 124; Union Bank v. Emerson, 15 Mass. 159; Day v. Perkins, 2 Sandf. Ch. R. 364; Walker v. Sherman, 20 Wend. 636; Winslow v. Mer.Ins. Co., 4 Metc. 306; Hancock v. Jordan, 7 Ala. 448; Amos & Ferard on Fixtures 11. It will be noticed, that the appellant, in removing the cogwheel from the land, acted as agent of the vendor (McCullough.) This then is, in effect, a case between vendor and vendee. Thus regarding it, the court below committed no error, and its judgment is affirmed.