Sturgis v. Warren

Collamer, J. Whether an article is a fixture, and so actually a part of the freehold, or whether it may be treated as personal property, depends, in England, on a variety of considerations, and, among others, upon the question of who affixed it. When affixed by the owner of the freehold, they are considered as a part of the freehold, and, as between the executor and heir, they pass, with the inheritance, to the heir. The same rule obtains between a grantor and grantee.— When put on by a tenant, and for the purposes of trade and manufacture, they are considered personal property, and may be removed during the term, but not afterwards. If put on for the improvement of the freehold, as for the purposes of agriculture, they cannot be removed even by the tenant during his term. These distinctions are all considered in Elwes ,v. Maio, 3 East’s R. 38, and are confirmed by the authorities cited by the plaintiff in this case. In this state, and especially under our attachment law, it is difficult to recognize any such distinctions. Whether articles are personal property is a point which an officer should be able to determine by an inspection of the property itself, by the nature of the property, and the purposes for which it is used, more than by the manner in which it is affixed, or by a considera [436] tion of who affixed it. And the same rule should obtain whether it arises between executor and devisee, grantor and grantee, landlord and tenant or attaching creditor and debt- or, or his grantee. If the articles are so incorporated with a building as to become apart thereof, like the shutters, sashes and doors, though .they may be removed without drawing a nail, spike or screw, and leave the remainder uninjured, yet they are a part of the realty. On the other hand, though clocks, mirrors and other articles of furniture may be affixed by nails, screws, or otherwise, yet they are clearly still furniture, and personal property. So, too, are mechanics’ benches and equally so the machines in a factory, as much as a potash kettle set in an arch, or the stoves in a dwelling house or shop, which this court have already decided to be personal property. This was fully, and, we think, correctly decided in Tobias v. Francis. Neither are we aware that there has been any doubt entertained as to that point in that decision. Some doubt has, perhaps, been expressed as to the other point in that case, that is, when personal property is mortgaged with real estate, and the statute gives the use of the real estate to the mortgagor until the pay day, and the use of the personal property with the realty constituted its main value, whether such case ought not to constitute an exception to the general rule that the possession of personal property must always accompany and follow the sale or mortgage, to protect it from attachment. We find it, however, extremely difficult to adopt any such exception, from the impossibility of ascribing to it any distinct limitations. It might be made to cover a store with its goods, or a farm with its stock, as well as a factory with its machinery. Upon the whole, we do not feel disposed to question even that part of the decision of Tobias v. Francis, and it is conclusive of this case. The bell was first taken by the defendant on the 3d day oi January, 1838. If that is considered personal property, it clearly belonged to the Manufacturing Company, and was rightly taken by the defendant on execution, as the deed of the company includes only the building and the machinery. If this bell is considered as appurtenant to the factory, and a part of the realty, then it is to be re [437] collected that the plaintiff did not perfect his'j deed from Whitwell &. Bond, so as to become the,owner of the factory until the 8th day of January. His only right on the 3d day of Januaiy, was that of mere actual possession. That would enable him, at most, to sustain no action but that of trespass, quare clausum fregit, for this act of entering, severing and carrying away a part of the realty. Judgment affirmed.