Bergh v. Herring-Hall-Marvin Safe Co. 70 the owner of a majority of the stock of L.R.A. 756, 136 Fed. 368, 69 C. C. A. 212. the corporation having title to the buildj. Under a lease for oil and gas purposes, ing, in order to make possible the use of the by which it is agreed that the lessees shall building for the purpose for which it was have the privilege at any time to remove erected, and to facilitate the recovery of therefrom all machinery and fixtures placed money expended in its construction, without on said premises, machinery and other ap- any agreement that they shall remain his pliances placed on the property by the les- personal property, makes them a part of the sees and necessary for the prosecution of building, so as to pass under an execution that work do not become parts of the free- sale thereof. Murray v. Bender, 63 L.R.A. hold, and upon forfeiture of the lease for 783, 125 Fed. 705, 60 C. C. A. 473. nonpayment of rental, the lessees, or the owners of the machinery and fixtures, have a reasonable time after the termination of the lease in which to remove the property from the land. Gartlan v. Hickman, 67 L.R.A. 694, 56 W. Va. 75, 49 S. E. 14. § 45. domestic or ornamental fix tures. a. Domestic or ornamental fixtures which a tenant has a right to remove during his term are such only as may be easily severed and made equally useful to him in another house, and do not extend to such as are substantial additions to the house, or the removal of which would be injurious to the freehold. Wright v. Du Bignon, 57 L.R.A. 669, 114 Ga. 765, 40 S. E. 747. b. A servant's room, metallic gutters at tached to the roof of a house, and water pipes laid under the ground by a tenant on leased premises, become, when con зtructed and attached, a part of the freehold, and cannot be lawfully dissevered from the land by the tenant against the will of the landlord, even though at the time of their erection the tenant intended to remove them at the expiration of his term. Wright v. Du Bignon, 57 L.R.A. 669, 114 Ga. 765, 40 S. E. 747. b. A building erected on stone posts set in the ground on another's land, under a parol agreement that it shall remain the property of the builder, does not pass by a conveyance of the land to a bona fide purchaser for value and without notice of the agreement. Peaks v. Hutchinson, 59 L.R.A. 279, 96 Me. 530, 53 Atl. 38. § 48. Between owner or lienor of a. When the ownership of land is in one person and the ownership of a thing affixed thereto and in its nature capable of another, such fixture cannot in contemplaseverance without injury to the land is in tion of law become a part of the land but must necessarily remain distinct property to be used and dealt with as personal estate only. Schellenberg v. Detroit Heating & Lighting Co. 57 L.R.A. 632, 130 Mich. 439, 90 N. W. 47. b. A contractor who, by agreement with the vendee, affixes houses to land held under an executory contract of purchase, will be held to have consented to the affixing and all its consequences, so as to prevent him from removing them as against the rights of the vendor. Miller v. Waddingham, 11 L.R.A. 510, Cal. -, 25 Pac. 688, rev'd c. Fixtures consisting of electric devices, annexed to a rented structure by a tenant for his personal comfort and convenience, without any view of their becoming permanently attached thereto as a part of the on other grounds on rehearing, 13 L.R.A. realty, do not lose their identity as chat-680, 91 Cal. 377, 27 Pac. 750. tels; and a possessory warrant will lie to recover them from the landlord, who wrongfully withholds possession of them from the tenant. Raymond v. Strickland, 3 L.R.A. (N.S.) 69, 124 Ga. 504, 52 S. E. 619. § 46. Between tenant and purchaser from landlord. Effect of estoppel, see ESTOPPEL, § 89 d. a. As between a tenant and a purchaser without notice of the leased premises, the purchaser takes all articles of personal prop erty which are annexed to the land at the time of the purchase where in character they are such as ordinarily are attached as permanent improvements of the particular class of realty. Pabst v. Ferch, L.R.A. 1915E, 822, 126 Minn. 58, 147 N. W. 714. § 47. Between owner of fixtures and purchaser of realty. Rights of purchaser of land as against prior purchaser of building, see VENDOR AND PURCHASER, § 73 h. See also ante, § 30 b, e. a. The annexation of chairs, stage, stage fixtures, and drop curtain to a theater by c. A mortgagor and his son cannot, as against a prior mortgagee by agreement be tween themselves, impress the character of chattels upon improvements to be attached to the realty by the son. McFadden v. Allen, 19 L.R.A. 446, 134 N. Y. 489, 32 N. E. 21. d. The rule as to machinery temporarily attached to a building being personalty rather than a fixture, is the same where the controversy is between a mortgagor and mortgagee, and where the controversy is be tween the mortgagee and one claiming adversely to the mortgagor. Neufelder V. Third Street & Suburban R. Co. 53 L.R.A. 600, 23 Wash. 470, 63 Pac. 197. e. A chattel mortgage containing the provision that the mortgagee may take possession and sell the property on default of payment, given for the purchase price by the owner of land upon machinery which he afterwards places in a building, is equiva lent to an express agreement that the prop erty shall continue to be regarded as personalty. Binkley v. Forkner, 3 L.R.A. 33, 117 Ind. 176, 19 N. E. 753. f. The intention of the contracting par- tention to reserve the title until the purties that things annexed to real property chase price is paid, in order to enforce such shall retain their character as personalty, claim against the municipality after the will control, even as against the rights of appliance has been attached to the realty, a prior mortgagee, subject to the limitation and the question of what has been paid the that the fixtures which, outside of stipula- contractor by the municipality is immation, would have, under the law, been re- terial. Allis-Chalmers Co. v. Atlantic, 52 garded as real estate, can be removed only L.R.A. (N.S.) 561, 164 Iowa, 8, 144 N. W. when such removal can be effected without 346. (Annotated) injury to the real estate or to the building to which they are attached. German Sav. & L. Soc. v. Weber, 38 L.R.A. 267, 16 Wash. 95, 47 Pac. 224. g. An agreement between landlord and tenant permitting the latter to remove machinery from the building at the termination of the lease does not prevent its becoming part of the building so as to be subject to a mechanics' lien, Horn v. Clark Hardware Co. 45 L.R.A. (N.S.) 100, 54 Colo. 522, 131 Pac. 405. (Annotated) h. A statutory provision that, if the title or interest in land upon which property subject to a lien is situated cannot be subjected to the lien, the court may order its sale and removal from the land, does not apply to a building erected on mortgaged land so as to permit its sale to satisfy the lien of the mechanics against the claim of the mortgagee. Cutler v. Keller, L.R.A. 1917C, 1116, 88 Wash. 334, 153 Pac. 15. (Annotated) § 49. Between owner and attaching creditors. a. The main belt which transmits the power from an engine which is so affixed to the building as to be real estate, to the machinery in the mill, is, as between the owner and attaching creditors, real estate. Giddings v. Freedley, 65 L.R.A. 327, 128 Fed. 355, 63 C. C. A. 85. $50. Between seller of personalty a. The vendor of personal property sold to be, and in fact, attached to real estate by the owner thereof, or with his consent, as a permanent improvement, may by contract with such owner preserve the chattel character of the accession. Fuller-Warren Co. v. Harter, 53 L.R.A. 603, 110 Wis. 80, 85 N. W. 698. b. Heating apparatus bought by a man under contract reserving title in the seller, and permanently placed in a building owned by himself and his wife by entireties, does not become a fixture so as to prevent its removal for nonpayment of the purchase money, if removal will not materially injure it or the building, since there is no unity of title in it and the real estate. Schellenberg v. Detroit Heating & Lighting Co. 57 L.R.A. 632, 130 Mich. 439, 90 N. W. 47. § 51. Between seller of fixtures retaining lien thereon, and purchasers or encumbrancers of realty. See also SALE, § 96 p-t. g 52. -as against purchasers. a. To preclude a vendor from reclaiming a chattel affixed to the realty under an agreement that title shall remain in the vendor until the price is paid, the owner of the realty must have been a purchaser thereof for value subsequent to the annexation of the fixture and without notice that the vendor retained the title. Blanchard v. Eureka Planing Mill Co. 37 L.R.A. (N.S.) 133, 58 Or. 37, 113 Pac. 55. b. Brick manufacturing machinery, sold under a conditional-sale contract which is duly recorded, and which reserves title in the vendor until the purchase price is fully paid, and provides that the title thereto shall not be affected by the delivery and erection thereof, and that, in default of payment, the vendor shall have the right to enter and take possession, does not become a part of the real estate by being placed in a building, and annexed in such a manner as to be removable without injuring the support of such building, the foundation, walls, or other part of the real estate to which it is attached, so as to pass to a subsequent purchaser of the real estate. Lawton Pressed Brick & Tile Co. v. RossKellar Triple Pressure Brick Mach. Co. 49 L.R.A. (N.S.) 395, 33 Okla. 59, 124 Pac. 43. (Annotated) e. Wagon scales sold on condition that title be retained in the vendor until the purchase price is paid, but which the vendee is in his business in such a way as to make allowed to set up on his premises for use them a fixture, will pass to a purchaser of the property at sheriff's sale, who buys in good faith without notice of the vendor's claim. Thomson v. Smith, 50 L.R.A. 780, 111 Iowa, 718, 83 N. W. 789. 53. -as against prior mortgagee of realty. a. Where personal property, after being subjected to the lien of a chattel mortgage, is attached to mortgaged land, it will be held to have passed to the mortgagee in the chattel mortgage as against the assignee or holder of the real estate mortgage, who had notice of the first mortgage when it, was attached. Waller v. Bowling, 12 L.R.A. 261, 108 N. C. 289, 12 S. E. 990. c. One furnishing appliances to a contractor to become a part of an electric light b. Notice to a prior mortgagee of real plant which he is constructing for a mu-estate, of a conditional sale agreement by nicipality, with knowledge of the use to which the vendor reserves the title to chatwhich they are to be put, is bound to give tels annexed to the real estate, is not esthe municipality actual notice of his in-sential to preserve the rights of such ven dor. Bromich v. Burkholder, L.R.A.1916F, | estate a chattel mortgage on an engine and 1275, 98 Kan. 261, 158 Pac. 63. boiler and other machinery, given for the c. Machinery sold under a conditional purchase price, will be a valid prior lien, agreement by which the title is reserved in where the removal of the articles will not the seller until full payment of the pur- injure or impair the value of the real es chase price retains its character as per- tate or the buildings thereon. Binkley v. sonal property against the holder of a prior Forkner, 3 L.R.A. 33, 117 Ind. 176, 19 N. real estate mortgage, although it replaces E. 753. machinery which was there when the real estate mortgage was executed, and which was removed to make room for such machinery. Bromich v. Burkholder, L.R.A. 1916F, 1275, 98 Kan. 261, 185 Pac. 63. d. The character of the accession of personalty as a permanent improvement to realty cannot be preserved by contract between the vendor and vendee of the personalty, as against the owner of a mortgage of the realty existing when the accession is made, who is not a party to such contract. Fuller-Warren Co. v. Harter, 53 L.R.A. 603, 110 Wis. 80, 85 N. W. 608. j. A real-estate mortgage which, after describing the real estate, specifically enumer ates an engine, boiler, and other nachinery as being also and in effect separately mortgaged, and providing that the mortgagor shall not remove any of the machinery enumerated until the mortgage debt is fully paid, shows a manifest intention to regard the machinery as personal property and to include it in the mortgage as such, and therefore is subject to a prior chattel mortgage on such machinery. Binkley v. Forkner, 3 L.R.A. 33, 117 Ind. 176, 19 N. E. 753. k. Where machinery is purchased for use in a permanent building, under a contract that it shall remain the property of the seller, or where, after it is placed in such building, a chattel mortgage upon it is given by the purchaser to the seller, a real-estate mortgage of prior date to the purchase is not a lien thereon, and the chattel mortgagee has a right of action to foreclose his Anderson v. Creamery Package Mfg. Co. 56 L.R.A. 554, 8 Idaho, 200, 67 Pac. 493. e. Personal property incorporated into, or affixed to real estate in such a manner that it would be subject to the lien of an existing mortgage thereon as between the mortgagor and mortgagee will be so subject to such lien, notwithstanding an agreement between a vendor and the mortgagor, that it shall retain its character as personal property unless the mortgagee is a party mortgage. to such agreement, especially where the mortgage contains an after-acquired property clause and has been drawn for the purpose of embracing the entire working plant of a corporation including the franchises. Tippett & Wood v. Barham, 37 L.R.A. (N.S.) 119, 180 Fed. 76, 103 C. C. A. 430. f. Persons undertaking to erect a standpipe as part of a waterworks system, which is to be attached to the foundation by bolts embedded in it, cannot, by contract to which the mortgagee is not a party, reserve a right to remove it in case of failure to pay the purchase price, as against rights under a mortgage covering after-acquired property of the water company, and which embraces its entire working plant, including franchises. Tippett & Wood v. Barham, 37 L.R.A. (N.S.) 119, 180 Fed. 76, 103 C. C. A. 430. g. The installation in a building, of a refrigerating plant sold under conditional sale, does not destroy its character as per sonalty. Ratchford v. Cayuga County Cold Storage & W. Co. L.R.A.1918E, 615, 217 N. Y. 565, 112 N. E. 447. h. Standing finish, consisting of window and door sashes, jambs, trimmings, wainscoting, baseboards, mantel piece without the tiling, and doors, including glass and hardware, when placed in a mortgaged building under a contract with the mortgagor by which the contractor retains title until he is paid, do not become a part of the real estate so as to defeat the contractor's right to remove them, when they are attached to the building by screws only and can be removed without injury to the building. German Sav. & L. Soc. v. Weber, 38 L.R.A. 267, 16 Wash. 95, 47 Pac. 224. i. As against precedent mortgages of real 1. The agreement between a seller and purchaser of machinery to be affixed to the realty, that the title shall remain in the seller until the price is paid, is binding on the existing mortgagee of the realty, although the contract is not recorded so as to be effective against subsequent purchasers without notice. Blanchard v. Eureka Planing Mill Co. 37 L.R.A. (N.S.) 133, 58 Or. 37, 113 Pac. 55. § 54. —as against subsequent mort- a. One who takes a chattel mortgage on machinery which, with his assent, is affixed and made a part of real property, but takes no mortgage of the land, cannot hold the machinery as against a subsequent mortthe chattel mortgage. Tibbetts v. Horne, gagee of the realty without knowledge of 15 L.R.A. 56, 65 Ň. H. 242, 23 Atl. 145. (Annotated) § 55. Remedy. Removal by contractor of pavement rejected see INJUNCTION, § 28. Injunction against removal of, see INJUNC TION, § 74. a. A party in possession of premises, who is entitled to remove structures, may exercise the right without resort to equity. Cook v. Cooper, 7 L.R.A. 273, 18 Or. 142, 22 Pac. 945. Conclusiveness of legislative determination as to, see COURTS, § 95 g. FLAT CAR. Passenger's negligence in riding on, see CARRIERS, § 388 b. FLAT RATE. See WORDS AND PHRASES, 1405. FLATS. Erection of flat building as violation of covenant, see COVENANTS AND CONDITIONS, § Of logs, acquiring right of, by eminent domain, see EMINENT DOMAIN, § 82. Of logs, right to compensation for interfering with, see Question for jury as to, see EMINENT DOMAIN, § 191 q. WATERS, §§ 9, 10, 29–35. Security on condemnation of right of, see Capacity of stream for floating, see FLOATING INDEBTEDNESS. As act of God, see See WORDS AND PHRASES, 1410. FLOOD. ACT OF GOD, § 4. |