Lee v. Ris don, 7 Taunt. 191. must exercise his privilege of removing his fixtures during the continuance of his term, and not after. If he do, he will be a trespasser1; for, after the expiration of the term, fixtures put up by the tenant become, in law, a gift to the reversioner 2, except the tenant remain in possession of the demised premises after the expiration of the term; for then it is not quite clear whether he may not remove his fixtures, though his legal interest has expired 3. The lessee cannot, even during the term, maintain trover for fixtures attached to the freehold; for, until severed, they are parcel of the freehold, and as such not recover- Robart, 2 East, able in trover4. 2 Lyde v. Russell, 1 Barn. & shall v. Lloyd, Ad. 394; Min. 2 Mee. & Wels. 450. 3 Penton v. 88. 4 Mackintosh v. Trotter, 3 Mee. With reference, however, to the points which have been here stated, it ought to be observed, that the legal rights of the & W. 184. landlord and tenant, as to the removal of fixtures, may be modified by express covenant. As where the tenant covenanted, that he would well and sufficiently repair and keep in repair all erections and buildings, then erected and built, or to be erected and built, it was held that, under this covenant, the tenant was restrained from removing certain fixtures, which, as trade erections, he would otherwise have been entitled to take away 5. 5 Thresher v. East London Water- works & Cress. 608. Effect of the erection of fixtures by the landlord.]—Where fixtures are attached by the landlord, they become part of the freehold; and, therefore, where a tenant in fee of a cotton-mill, in which there was an engine, boilers, &c., mortgaged the mill, engine, boilers, &c., but remained in possession until his bankruptcy; the entablature plate of the engine, which, however, formed no part of the working apparatus, being fixed to the freehold of the mill, and every other part of the engine secured by bolts and screws, and capable of being removed without injury to the building,—it was held, that the steam-engine was not in the order and disposition of A. at the time of his bankruptcy, but belonged as part of the inheritance to the mortgagee. So, where the owner of the inheritance gave a mortgage of certain premises, and continued in possession; he afterwards added fixtures; and it was held, that they were not in his reputed ownership, but belonged to the mortgagee7. Where the owner of a freehold house, Ex parte Belin which there were various fixtures, sold it, and nothing was said about the fixtures, and a conveyance of the house was afterwards executed, and possession given to the purchaser, the fix Hubbard v. Bagshaw, 4 Sim. 327. cher, 2 Mont. & Ayr. 160. 1 Colegrave v. Dias Santos, 2 Barn. & Cr. 76. 3 Tyr. 628. tures still remaining in the house, it was held, that they passed by the conveyance of the house 1. In regard, however, to the doctrine, that fixtures added by the owner belong to the inheritance, it is stated by Lord Lyndhurst, in Trappes v. Harter2, as the result of all the authorities-"That where utensils and machinery are erected by the owner for the purpose of trade only, in a neighbourhood where such utensils and machinery would commonly have been removed, and when this can be done without injury to the inheritance, they form an exception to the general rule, and are not to be taken as part of the inheritance, but as personal estate." This proposition is clearly at variance with the cases just stated,—it will be found, on examination, that the authorities to which his lordship refers do not support it,-it has since, on various occasions, been referred to with disapprobation,—and was not necessary for the decision of the case in which it was laid down. It may, perhaps, therefore, be safely rejected. In this case, premises in Lancashire, described as "land, a dwelling-house, a machinehouse, and other buildings and erections," were conveyed in fee to one of several partners. The conveyance stated them to be in the possession of that partner and another of his three partners. Machinery and utensils were afterwards placed therein by the firm, for the purpose of carrying on the business of calicoprinters. The machinery and utensils were firmly fixed to the freehold, yet in such a manner, that they might be easily removed without material injury to themselves or the buildings. In that part of the country, sundry articles so fixed are commonly bought, sold, and removed, without treating them as fixtures. In taking stock, yearly, between 1804 and 1825, the buildings and land were valued and classed separately from the machinery and fixtures, but the whole was always dealt with and considered as partnership property. In 1828, two of the partners (then seised in fee of the freehold land and building, under a conveyance not mentioning machinery or fixtures), mortgaged them for a term, "and also the steam-engine, mill-geering, heavy geer, millwright work, fixed machines, and other matters and things standing or being in or upon the thereby demised buildings, works, and premises, which in any manner constitute fixtures and appendages to the freehold estate of the same or any part thereof." They remained in possession, and carried on the works till 1829, when they compounded with their creditors, and afterwards, till they became bankrupt. In April, 1831, their assignees sold and removed the machinery and utensils, except two steam-engines, with the first motion and main shafts attached to them, and two water-wheels which supplied power to the rest. It was held, first, and wrongly as it would appear, that the machinery and utensils so removed, having been affixed to the inheritance for the purpose of trade only, in a place where, as such, they should have commonly been removed, and being, in fact, removable without injury to the freehold, were not to be taken as part of the inheritance, but as personal estate only, which passed to the assignees of the bankrupt; and, secondly, that the mortgage-deed was only intended to pass that part of the machinery, which, from the circumstances of its erection, necessarily became part of the freehold. The latter of these points was sufficient to determine the question before the court, and, consequently, the former was extrajudicial. Effect of bankruptcy of the tenant as to the right to fixtures.] -The leading authority on this subject is Horn v. Baker1, where 19 East, 215. it was determined, first, that certain machinery and utensils fixed to the freehold, did not pass to the assignees of the tenant under the words "goods and chattels," in the Bankrupt Act; secondly, that the vats, &c. which were not so fixed, did pass to the assignees, under the doctrine of reputed ownership; and, thirdly, that the case would have admitted of a different consideration, if there had been a usage in the trade for the utensils of it to be let out to the traders, as that might have rebutted the presumption of survivorship, arising from the possession and apparent ownership of them. The doctrine has been followed up in Clark v. Crownshaw2. In this case, a tenant took a lease 3 Barn. & Ad. of a mill and iron-forge, and bought the fixed and movable implements, &c.; but it was agreed that they should be delivered up at the end or sooner determination of the term, at a valuation, if the lessors should give fifteen months' notice of their desire to have them. The tenant afterwards conveyed all his interest in the premises, implements, &c., to secure a debt: he made default in payment, and afterwards became bankrupt; after which, and during the term, the creditor entered upon the property; and it was held, on trespass brought by the assignees, 804. 1 Colegrave v. Dias Santos, 2 Barn. & Cr. 76. '3 Tyr. 628. tures still remaining in the house, it was held, that they passed by the conveyance of the house 1. In regard, however, to the doctrine, that fixtures added by the owner belong to the inheritance, it is stated by Lord Lyndhurst, in Trappes v. Harter 2, as the result of all the authorities—“That where utensils and machinery are erected by the owner for the purpose of trade only, in a neighbourhood where such utensils and machinery would commonly have been removed, and when this can be done without injury to the inheritance, they form an exception to the general rule, and are not to be taken as part of the inheritance, but as personal estate." This proposition is clearly at variance with the cases just stated,—it will be found, on examination, that the authorities to which his lordship refers do not support it,-it has since, on various occasions, been referred to with disapprobation,-and was not necessary for the decision of the case in which it was laid down. It may, perhaps, therefore, be safely rejected. In this case, premises in Lancashire, described as "land, a dwelling-house, a machinehouse, and other buildings and erections," were conveyed in fee to one of several partners. The conveyance stated them to be in the possession of that partner and another of his three partners. Machinery and utensils were afterwards placed therein by the firm, for the purpose of carrying on the business of calicoprinters. The machinery and utensils were firmly fixed to the freehold, yet in such a manner, that they might be easily removed without material injury to themselves or the buildings. In that part of the country, sundry articles so fixed are commonly bought, sold, and removed, without treating them as fixtures. In taking stock, yearly, between 1804 and 1825, the buildings and land were valued and classed separately from the machinery and fixtures, but the whole was always dealt with and considered as partnership property. In 1828, two of the partners (then seised in fee of the freehold land and building, under a conveyance not mentioning machinery or fixtures), mortgaged them for a term, "and also the steam-engine, mill-geering, heavy geer, millwright work, fixed machines, and other matters and things standing or being in or upon the thereby demised buildings, works, and premises, which in any manner constitute fixtures and appendages to the freehold estate of the same or any part thereof." They remained in possession, and carried on the works till 1829, when they compounded with their creditors, and afterwards, till they became bankrupt. In April, 1831, their assignees sold and removed the machinery and utensils, except two steam-engines, with the first motion and main shafts attached to them, and two water-wheels which supplied power to the rest. It was held, first, and wrongly as it would appear, that the machinery and utensils so removed, having been affixed to the inheritance for the purpose of trade only, in a place where, as such, they should have commonly been removed, and being, in fact, removable without injury to the freehold, were not to be taken as part of the inheritance, but as personal estate only, which passed to the assignees of the bankrupt; and, secondly, that the mortgage-deed was only intended to pass that part of the machinery, which, from the circumstances of its erection, necessarily became part of the freehold. The latter of these points was sufficient to determine the question before the court, and, consequently, the former was extrajudicial. Effect of bankruptcy of the tenant as to the right to fixtures.] -The leading authority on this subject is Horn v. Baker1, where 19 East, 215. it was determined, first, that certain machinery and utensils fixed to the freehold, did not pass to the assignees of the tenant under the words "goods and chattels," in the Bankrupt Act; secondly, that the vats, &c. which were not so fixed, did pass to the assignees, under the doctrine of reputed ownership; and, thirdly, that the case would have admitted of a different consideration, if there had been a usage in the trade for the utensils of it to be let out to the traders, as that might have rebutted the presumption of survivorship, arising from the possession and apparent ownership of them. The doctrine has been followed up in Clark v. Crownshaw2. In this case, a tenant took a lease 3 Barn. & Ad. of a mill and iron-forge, and bought the fixed and movable implements, &c.; but it was agreed that they should be delivered up at the end or sooner determination of the term, at a valuation, if the lessors should give fifteen months' notice of their desire to have them. The tenant afterwards conveyed all his interest in the premises, implements, &c., to secure a debt: he made default in payment, and afterwards became bankrupt; after which, and during the term, the creditor entered upon the property; and it was held, on trespass brought by the assignees, 804. |