which it may ground its jurisdiction. The case of Danby v. Dan

1

See, also, Charlton v.

Low, 3 P. W.

by will illustrate these observations. There the plaintiff being Finch, 220. possessed of a long term of years, and being very aged and having several younger children, the defendant, his son and heir-at-law, by combination with the reversioner in fee, fraudulently procured him to convey the same to the use of the plaintiff and his heirs, or to the use of the plaintiff for life, remainder to the defendant (his son and heir-at-law), and his heirs, or to some such effect, on purpose to drown the said estate and term for years in the inheritance, and that without the plaintiff's privity, and to hinder him from making a provision for his younger children. All this matter appearing to the court, it was decreed that the plaintiff, his executors, administrators, and assigns, should peaceably hold the premises during the said term, that "there should be no merger of the term," and that the plaintiff, his executors, &c., might assign and dispose thereof in as ample a manner as if such conveyance had never been made 2. So, in Saunders v. Bournford3, John Allen, being seised in fee, granted a term of 1,000 years to Richard Saunders, who, upon the marriage of his son, John, assigned the residue of the term to him. Jobn Harris, in the year 1662, assigned the remainder of the term to Thomas Harris and John Allen, the grandson and heir-at-law of the original lessor, upon trust for his wife, and for the education and raising portions for her younger children; and after her decease, in trust for Edward, her eldest son, and that, on request, they should assign the same to him; and the premises were enjoyed accordingly. In the year 1668, Edward bequeathed the residue of the term to his wife, who sold it to the plaintiff for a valuable consideration. Afterwards, the defendant claimed a title as heir-at-law of the original lessor, on the ground that a moiety of the said term was merged in the inheritance by reason of the assignment in 1662 to Thomas Harris and John Allen, who was then heir-at-law to the reversion in fee. On a bill filed by the plaintiff, to have one moiety of the term confirmed to him, and that the defendant might make a new grant of the other moiety which was merged as aforesaid, it was decreed that the plaintiff "should hold the pre

mises during the remainder of the term,

notwithstanding the

merger of the moiety, and that the defendant should make further assurance of the remainder of the said term." In The Duke of

328.

Finch, 424.

Norfolk's case, Chief Baron Montague is reported to say, in reply 3 Ch. Ca. 15. to the argument that the term under discussion was surrendered

6 Crui. 494.

and gone, "yet the trust of that term remains in equity; and if the trust be destroyed by him that had it assigned to him, this court has full power to set it up again, and to decree the term to him to whom it did belong, or a recompense for it; therefore I think that stands not at all as a point in the case, or as an objection in the way." These principles will be further illustrated by 1 In Re Frank, a recent case1. There, A., being seised in fee, conveyed an estate to the use of B. and C., for 1,000 years, in trust to raise portions, and subject thereto to himself in fee. He afterwards devised the estate to C. and D. upon trusts, and died; by reason whereof the joint-tenancy of B. and C. was severed, and C.'s moiety of the term merged in the inheritance devised to him. The court of Chancery ordered the parties entitled to the inheritance to restore the term, and to execute such conveyances as would legally secure the equitable charges upon the entire inheritance. Had there in this case been no subsisting equitable charges, this term would have been attendant, equity would not have interposed, and consequently, the term, as to one moiety of the premises comprised in it, would have been extinguished.

4 Mod. 1.

The effect of a merger is to extinguish the particular estate, and bring forward the reversion into an immediate estate in possession, and consequently to accelerate all charges upon the reversion, and make them immediately raisable: and it would seem that not only those, but also the charges upon the estate merged, attach upon the reversion. Thus, in Symonds v. Cudmore2, Sir Nicholas Martin being tenant for life, with remainder in tail to William, his eldest son, and having power to make leases for twenty-one years, or three lives, reserving the ancient rent, made a lease to A. for ninety-nine years, if two persons named should so long live, reserving the ancient rent. Sir Nicholas died, leaving William, his eldest son, who being then tenant in tail in possession, and also reversioner in fee expectant upon that estate, released the said rent, and before the determination of the said lease made a second lease for ninety-nine years, if two persons named should so long live, to commence after the determination of the first lease. William died, leaving Nicholas, his eldest son and heir, who being the issue in tail, levied a fine to the use of himself and heirs. Afterwards the first lease determined, Nicholas entered and made a lease to the plaintiff, upon which the defendant, the assignee of the second lease, entered; and whether his entry was lawful was the question? And it was held that it was; for

FIXTURES.

assuming the second lease not to be void, but voidable only, the cognisor could only avoid it by entry as issue in tail; but having destroyed the estate tail to which that right was incident, the right also was extinguished, and could not be transferred to the cognisee1.

SECT. 7.-OF FIXTURES.

What constitutes a fixture, 395.-Trade fixtures, 396.—Ornamental furniture, &c. 400.-Fixtures must be removed during the tenancy, ib.-Effect of the erection of fixtures by the landlord, 401.-Effect of the bankruptcy of the tenant on the right to fixtures, 403.-Effect of an agreement to take the fixtures at a valuation, 405.-Right to fixtures as between out-going and in-coming tenants, ib.

Questions on this subject have most frequently arisen in regard to fixtures erected by tenants for years, and, therefore, the consideration of the whole subject has been referred to this chapter, although, so far as regards annexations to the freehold by the owner of the inheritance or the tenant for life, parts of the subject might obviously have been treated of under those heads. The term fixtures has been used in a variety of acceptations. Sometimes nothing more is meant by it than the simple fact of annexation to the freehold, and thence the common expressions, landlord's fixtures, tenant's fixtures, removable and irremovable fixtures. Sometimes it is applied to denote that the articles so called, though fixed to the freehold by the tenant, cannot be removed by him; thus it is said, that an article shall fall in with the lease to the landlord, or descend to the heir with the inheritance, because it is a fixture: and, in a recent case 2, the court said, that "the word 'fixtures' has acquired the peculiar meaning of chattels which have been annexed to the freehold, but which are removable at the will of the person who annexed them." Without impugning the import here given of the term fixtures, it may be sufficient to observe, that the word as used in this section, merely signifies "any thing annexed to the freehold." At the common law, as it originally stood, whatever was once annexed to the freehold became part of the inheritance, and the removal of it was waste. As to fixtures erected by the owner of the inheritance, and the consequential rights of the heir and executor, the law does not appear to have been relaxed, except so far as con

And see Earl of Shelbourne v. Biddulph, 6 Bro. P. C. 356.

Hallen v. Runder, 1 C.

M. & R. 276.

13 East, 38.

cerns ornamental furniture, In regard, however, to fixtures erected by tenant for life or for years, the law has been much modified, and it is the object of the present section to trace out the extent to which this modification has been carried.

The leading authority on the subject of fixtures is Elwes v. Maw, where the preceding cases are fully examined, and their result stated, with all the amplitude of illustration and clearness of exposition which characterise the judgments of the great lawyer who then presided over the court of King's Bench. "Questions respecting the right to what are oridinarily called fixtures," observes Lord Ellenborough on this occasion, “principally arise between three classes of persons:-First, between different descriptions of representatives of the same owner of the inheritance; namely, between his heir and executor. In this case, the rule obtains with most rigour in favour of the inheritance and against the right to disannex therefrom, and to consider as a personal chattel any thing which has been annexed thereto. Secondly, between the executors of tenant for life or in tail, and the remainder-man or reversioner; in which case the right to fixtures is considered more favourably for executors than in the preceding case between heir and executor. The third case, and that in which the greatest latitude and indulgence has always been allowed n favour of the claim to having any particular articles considered as personal chattels, as against the claim in respect of freehold or inheritance, is the case between landlord and tenant. But the general rule on this subject is that which obtains in the firstmentioned case, namely, between heir and executor; and that rule is, that where a lessee, having annexed any thing to his freehold during his term, afterwards takes it away, it is waste. But this rule, at a very early period, had several exceptions attempted to be engrafted upon it, and which were at last effectually engrafted upon it, in favour of trade, and of those vessels and utensils which are immediately subservient to the purposes of trade. [After examining the cases, his lordship proceeds: ] The indulgence in favour of the tenant for years during the term has been since carried still further, and he has been allowed to carry away matters of ornament, as ornamental marble chimney-pieces, pier-glasses, hangings, wainscot fixed only by screws, and the like; but no adjudged case has yet gone the length of establishing, that buildings subservient to purposes of agriculture, as distinguished from those of trade, have been removable by an executor

of tenant for life, or by tenant himself, who built them during his term." In determining, therefore, upon the question whether a given article, erected during the occupancy of the tenant, is removable, the inquiry will be, in the first place, whether, in point of fact, it is a fixture? If it be, then, secondly, whether it comes within the exceptions which have been established in favour of erections and utensils constructed and made with reference to purposes of trade, or for the purpose of ornament?

What constitutes a fixture.]—In reply to this inquiry, it is to be observed, that, "to constitute a fixture, there must be a complete annexation to the freehold." Without such annexation

3 Wansbrough

v. Maton, 4 Ad.

& Ell. 884.

the thing is not a fixture. Thus, in Culling v. Tuffnell 1, where Bull. N. P. 34. the tenant had erected a barn upon the premises, and put it upon pattens and blocks of timber lying upon the ground, but not fixed in or to the ground, it was held that the tenant might, by the custom of the country, take them away at the end of his term: "To be sure he might," observes Lord Ellenborough 2, "and that with- 3 East, 55. out any custom; for the terms of the statement exclude them from being considered as fixtures,-they were not fixed in or to the ground." So, in a late case 3, a tenant was held to be entitled, at the expiration of his term, to remove a wooden barn which he had erected on a foundation of brick and stone, the barn being supported by mere pressure, and the brick-work being built on and let into the ground in those parts where it was lowest, for the purpose of making an even foundation for the barn to rest upon. Vats, supported by and resting upon brick-work and timber, but which were not fixed into the ground, have been held not to be fixtures 4; nor a varnish-house, built on a wooden plate, lying on brick-work 5; nor a wooden stable which stood on blocks or rollers 6; nor a mill set upon posts 7; nor certain sheds called Dutch barns, which had a foundation of brick-work in the ground, and "uprights fixed in, and rising from the brick-work, and supporting the roof, which was composed of tiles, and the sides open 8." 259. In this case Lord Kenyon said, "If a tenant will build upon premises demised to him a substantial addition to the house, he must leave his addition at the expiration of his term for the benefit of the landlord; but the law will make the most favourable construction for the tenant, where he has made necessary and useful erections for the benefit of his trade or manufacture, and which enable him to carry it on with more advantage. It has been so held

215.

Horn v. Baker, 9 East, Penton v. Robart, 2 East, 88.

Fitzherbert v. Shaw, 1 H. Bl.

7 Ward's case, Leon. 4th part,

241.

Dean v. Al

laley, 3 Esp.

11.