Price v. Brayton

Cole, J. v vendee!1*1 If the rule as to the right to remove fixtures and emblements was the same between vendor and v chaser, as it is’between landlord and tenant, the right of the plaintiff to the nursery trees in controversy could not well be questioned. But, as in a controversy between heirs and the executor, the rule 311 obtains with the utmost rigor in favor of the inheritance and against the right to consider, as a personal chattel, anything which has been affixed to the freehold; so also is the same rule applied between vendor and vendee, mortgagor and mortgagee; and growing crops, manure lying upon the land and fixtures erected by the vendor for the purpose of trade and manufactures, pass to the vendee of the land. 2 Kent Com., 845, 846. Whether the sale is by the owner or by a public officer under the law, the rule is the same. Farrar v. Chauffetete, 5 Denio, 527. is_mortgag°r. ■ Fixtures made by the mortgagor after the mortgage become a part of the realty, as between him and the mortgagee, and cannot be removed. The mortgagor -s 'make such improvements as owner, for the permanent benefit of the estate; and in case of a sale under a mortgage foreclosure, the mortgagor will derive the advantage of it in the increased value thereof. Winslow v. Merchants’ Insurance Company, 4 Metc., 306. Without now entering into the discussion of the reasons and foundations of the different rules as applicable in the different relations of heir and executor, executor of tenant for life, and remainderman or reversioner, landlord and tenant, landlord and tradesman tenant, vendor and vendee, and mortgagor and mortgagee, it is clear, that while the nursery trees in controversy would be considered as personal property as to one or more of the relations named, yet they did pass to the defendant in this case under his purchase, and he is the owner thereof. 1 Sug. on Vend., 45, note 1, and authorities cited and note to 2d Kent, supra. Affirmed.