THE LAW OF FIXTURES.

PART II.*

There remain to be illustrated two further applications of our rule, namely: (1) That application of it which is finally determined by some regulative document in the nature of an agreement; and (2) That application of it which finally turns upon some derivative relation or relations which have come to be

established in one or both of the contending parties toward some third person or persons. But, inasmuch as the illustration of these latter applications of the rule forms, in reality, the substantive continuation of the Law of Fixtures, which is the subject of our article, in proceeding with that illustration we, in fact, resume the consideration of our subject in its main or leading branch.

Now it might prima facie be supposed, that, in accordance with that well-established principle of our law, whereby "modus et conventio vincunt legem," a written document in the nature of an agreement between the persons, the parties to it, would, in all cases, be the paramount consideration for counsel and judges to regard in forming their opinions in respect of the fixtures comprised, or apparently comprised, in it, or affected, or apparently affected, by it; and it has been customary for writers upon this branch of our law to make the existence or non-existence of such

an agreement the principal criterion for the logical division of their subject. We may point out, for example, that, in the two latest works upon the law of landlord and tenant, the work of Mr. Fawcett, and the joint work of Mr. Smith and Mr. Soden, this is the treatment which has been adopted. And yet if our

historical deduction, as given in part I, is correct, and, more particularly, if Lord Kenyon was justified (as we think he was) in taking the somewhat nice distinction which he did take, in the case of Dean v. Allalley, supra, then we, for our own parts, at least, should hesitate to accept, with the same unguarded and unsuspecting readiness that others do, the fact of agreement or no agreement as the paramount criterion in all cases whatsoever; although doubtless, in the great majority of modern cases, and of cases presently arising, the factum or non-factum of an agreement is practically the primary and, in many cases, the only consideration. We persist, however, in our opinion, as formerly expressed, that the true historical (and therefore, also, the only truly logical) importance of this criterion is that which we have assigned to it above, namely, an importance subordinate and secondary to the application of the two rules which respectively regard (1) The amenability or non-amenability of the particular fixture to the old and rigorous law affecting the strictly agricultural class of fixtures; and (2) The correspondence or non-correspondence

From the Law Magazine and Review. Part I was published in vol. 3, pp. 407 and 426.

of the particular fixture to the quality of the inheritance, whereby it becomes, or does not become, chemically united with it, and, in a manner, absorbed into and lost in it. With this explanation (which may possibly be liable to refutation), we proceed, in the first place, to set forth the cases into which an agree

ment has entered.

In the year 1807, in the case of Naylor v. Collinge, 1 Taunt. 19, under a covenant by a trader-lessee to yield up in repair, at the expiration of his lease, “all erections and buildings" already at the date of the lease erected and built, or thereafter to be erected and built, upon the premises demised, buildings let into the ground, although erected by the tenant for the exclusive purposes of his trade, were held in accordance with the old law relating to buildings incorporated with the inheritance, confirmed (or, at least, recognized and accepted) as that law was by the terms of the covenant, to be included in the covenant, and to he irremovable by the tenant; and, in like manner, and for the like reason, in the year 1818, in a case of Penry v. Brown, under a like covenant by a domestic lessee, a verandah let into the ground, although put up by tenant for ornament merely, was held to be irremovable by the tenant. It is, moreover, to be particularly noted, that, in the former of these two lastmentioned cases, an exception from the terms of the covenant was allowed in favor of trade in respect of

such of the buildings and erections as were made to rest on blocks or patens without being let into the ground, an allowance which was in strict accordance both with the letter, and with the spirit of the letter, of Lord Kenyon's decision in Dean v. Allalley, supra, and which seems, therefore, to corroborate, in no

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slight degree, our principle of subordinating the terms derived from our historical deduction. But to proof the agreement to those grand old rules which we ceed In the year 1856, in the case of Burt v. Haslett, 18 C. B. 163, and, on appeal, 893, under a covenant by a lessee (who was a linendraper) to yield up at the expiration of his lease the premises demised, * * windows * * and other together with "all * affixed or belonging thereto, * things, * and together also with all * improvements * made upon the premises," a plate-glass front put in by the tenant in place of the old window, although not fastened otherwise than with wedges, was held to be included within the scope of the covenant, in conin particular of the word windows occurring therein; of the express words of the covenant, and and here again, it is of importance to observe that the spirit of Lord Kenyon's decision in Dean v. Allalley was fully recognized, for the window, although intrade alone, was as much the exclusive subject of the tended by the linendraper for the purposes of his old law of the strictly agricultural fixtures, as buildings let into and incorporated with the soil, being in fact an outer window, which, like an outer door, is strictly necessary to complete the house, and, as being

sequence

so, becomes instanter part and parcel of the inheritance, and not removable by the tenant even who has erected it at his own expense, so that, notwithstanding all the linendraper's ingenuity, his glass front was in fact caught in our first sieve, irrespectively of his covenant, which only confirmed or recognized our principle. Again, in the case of Mansfield v. Blackburne, 6 Bing. (N. C.) 426, decided in the year 1840, under a covenant by the trader-lessee of a salt spring to leave the salt works (which the same lessee had also agreed to erect) in good repair at the end of his term, it was held that the iron salt-pans, as being parcel of the salt works, were included, and were in consequence thereof become, although in their own nature removable, practically irremovable by the tenant, Tindall, C. J., remarking in his judgment in this case, with, however (it seems to me), numerous inaccuracies, as follows:

"If this had been the ordinary case between landlord and tenant, as to the right of the latter to remove fixtures, or other things erected on the premises, at the end of the term, we should have entertained no doubt but that the salt-pans had been removable by the

tenant, as well from the nature and description of their annexation to the freehold, as upon the doctrine laid down by Lord Mansfield in Lawton v. Salmon, that it would have been a different question if the springs had been let, and the tenant had been at the expense of erecting these salt works; he might very well have said, 'I leave the estate no worse than I found it.' That would be for the encouragement and convenience of trade, and the benefit of the estate (sed quære)."

"But the question before us does not turn upon any general rule of law (sed quære), but upon the interpretation of a positive contract into which the parties have entered with each other, and the point we have to determine is, whether, under that contract, it was the intention of both parties that the salt-pans should be left at the determination of the term, or that the tenant should have the power to remove them."

Now here, also, the chief justice, although seeming to question our principle, unconsciously regulates his decision, and, in fact, he decided in accordance with it. So, again, in the case of R. v. Topping, 1 Maclel. & Y. 544, decided in 1825, and in the case of Dumergue v. Rumsey, 2 H. & C. 777, decided in 1866, an express clause in an agreement being held to have defeated (in the one case accidentally, in the other case intentionally) the tenant's right of removal, the fixtures became, in consequence thereof, instantly and indissolubly united with the inheritance, so as not to be leviable under a fi. fa. issued against the lessee. Such is the predominant vivacity or efficacy of the two considerations which I have designated paramount, and such, also, the readiness with which agreements not opposing coincide with them in their operation, to the utter disregard of every equitable consideration to the contrary.

Before, however, it is possible to maintain the absolute and universal paramouncy of my principle over all private stipulations and agreements whatsoever, it is necessary to inquire and know whether any

covenant or agreement which not only does not coincide with it, but which directly aims at superseding or displacing it, has been allowed to, in fact, supersede or displace it. Now, there is the case of Sumner v. Bromilow, 34 L. J. (N. S.), Q. B. 130, decided so recently as the year 1865, in which, in a state of circumstances otherwise resembling the case of Mansfield v. Blackburne, supra, it was held, that the saltpans in question were removable by the tenant who had put them in, and that they were so removable by reason of a difference in the words of the covenanta difference apparently suggested to the draughtsman or conveyancer by the decision in Mansfield v. Blackburne, being the exception or reservation, in express terms, of the "salt-pans and other removable articles" out of the general scope or operation of the covenant. So that our cherished principle apparently succumbs, and the old law, it seems, may be displaced in the interests of trade, or, indeed, of any other interest, by the employment of apt words expressly (and not in intention, merely) displacing or defeating it. The hallowed traditions of the past are, indeed, ever destined, in the natural course of jural development, to yield before the so-called imperative demands of modern life; and the court of queen's bench, in particular, as at present constituted, has always shown more readiness than reluctance to break off from the past. Probably, however, it is better so; certainly it is more in keeping with the strong reality of modern regards, to openly and directly recognize, instead of fictitiously ignoring, while in fact accepting, changes of the sort referred to. And, at all events, we, as mere writers, stating what the law actually is, are compelled by this decision to recognize the maxim, Cuique juri pro se introducto renuntiare licet, in its free operation in respect of all fixtures, as well those of the ancient as those of the modern class. And yet, even while compelled to admit thus much, who that has followed the course of decision downward, as presented in this article, or in the prior portion of it, would hesitate for one instant to agree with me in my view of the desirability, and, indeed, necessity, of attributing, if not a paramouncy to the first and second portions of my general rule, at least of attributing to them a paramount importance as collateral considerations, as exercising an all-powerful influence when not directly, expressly and laboriously excluded? Our general rule remains, therefore, if not altogether unassailable, practically unassailed.

We shall give but one further illustration of the extremely vigorous, and, indeed, the instantaneous, operation of those first and second portions of our rule, even in spite of covenants and agreements, which might seem to expressly and directly exclude their operation. The case shall be that of Foley v. Addenbrooke, 12 Mee. & W. 174, decided in the year 1844. The covenant, in that case, was to repair, and yield up in repair, "the furnaces, fire-engine, iron works, dwelling-houses and all other erections, build

ings, improvements and alterations, EXCEPT the iron-work castings, railways, wimseys, gins, machines and the moveable implements and materials used in or about the said furnaces, fire-engine, iron works and premises," and it was held by the court of exchequer, that, under this covenant, the defendants (who were the lessees) had right to remove "whatever was in the nature of a machine, or part of a machine, but not what was in the nature of building, or of support of buildings, although made of iron (and that, in such removal, they might disturb such brick-work as was necessary, etc.)." Now, what was the reason why the supports of buildings made of iron were irremovable, although they were, in fact, iron castings, and as such, therefore, within the exception of the covenant? Why, it was simply the operation, meanwhile, of the first and second portions of our rule. The iron supports had, in virtue of their application, ceased to be iron castings merely, and had become, meanwhile, indissolubly incorporated with the buildings of which they were the necessary complements.

It is, doubtless, true, that the great majority of modern fixtures pass readily and at once through both our first and our second sieves, being neither of the strictly agricultural sort, nor yet of a character to chemically unite with the inheritance; and hence has probably arisen the prevalent confusion of thought, to which we have already more than once alluded, of supposing the agreement or covenant to be solely and entirely regulative of the removability or irremovability of the particular fixtures. There are numerous cases of this modern sort; we shall only quote one or, at the most, two typical instances of them. One is that of Elliott v. Bishop, 10 Exch. 496, and, on appeal, 11 id. 113, where, under a covenant by a building tenant to yield up, at the expiration of his term, the premises demised, together with all "locks, keys, bars, bolts, marble and other chimney-pieces, footpieces, slabs, and other fixtures and articles in the nature of fixtures" put up during the term, it was held, that neither the so-called tenant's fixtures, nor the so-called trade fixtures usual in the tenancy and trade of the sub-lessee (who was a licensed victualler) were included in the covenant, the interpretation of which turned (in the particular circumstances of the case) upon the mere general rules of the interpretation of written documents, according to which (as Mr. Bovill pointed out in his argument) verba generalia following upon enumerated particulars are to be construed as generalia ejusdem generis, and therewith the case was at an end. So, again, in the case of Duke of Beaufort v. Bates, 31 L. J. (N. S.), Ch. 487, it was a mere question of interpretation, the matter in dispute being whether certain "tram plates," fastened, some to iron sleepers and some to wooden sleepers, resting upon, but not dug into, the earth floor of a mine, were or were not included in the phrase "ways and roads contained in a covenant in the lease. And yet, even in these cases of apparent simplicity,

it would be hazardous (and perhaps untrue) to state that the first and second portions of our principle received no regard; only they were evidently | excluded from effective operation.

(To be continued.)

CURRENT TOPICS.

The question whether the heir of the grantor in an unrecorded deed can convey a good title to an innocent purchaser for value- a question in which the courts have differed widely-has been decided in the affirmative by the supreme court of Missouri in Youngblood v. Vastine, 46 Mo. 239. The cases holding the negative doctrine (among which are Hill v. Meeker, 24 Conn. 211, and Hancock v. Beverly's Heirs, 6 B. Monr. 531) have taken the ground, that, as nothing descended to the heirs after a deed from the ancestor, they have nothing to convey. If that be so, it is because there was no estate left in the ancestor that could descend. If his whole estate was so divested, how does it happen that a second deed, if made by him, will give title, notwithstanding the first? Where a deed is not recorded, the title is apparently still in the grantor, and the law authorizes purchasers who are ignorant of the conveyance to deal with him as the real owner. In case of his death, the heir becomes the apparent owner of the legal title, and it is equally important, and equally just, that the public may be allowed to deal with him as with the original grantor if living. The latter view is also held in Kennedy v. Northrup, 15 Ill. 148; Powers v. McFarren, 2 Serg. & R. 44; Mc C'ulloch v. Endaly, 3 Yerg. (Tenn.) 346.

It has been supposed to be the peculiar glory of the common law that it throws around the weak and the unpopular individual a protecting barrier so strong that injustice, whether proceeding from governmental power, from wealth or from public opinion, cannot reach him. To secure this result, forms of procedure, both technical and tedious, have been devised, and legal rules laid down to guard, not only against the zeal of prosecutors or the hasty conclusions of the populace, but even against the indiscretion of the person himself, who may be charged with a criminal offense. And not only this, but it has ever been made the first duty of judicial officers, laying aside all other business, to see to it that the citizen be not deprived of his life or his liberty, except in strict pursuance of the laws of the land. Yet the other day when Judge Pratt of Brooklyn saw fit, on very good grounds, to grant a stay of proceedings in the case of Foster, he was immediately assailed by the press and the public, and charged with improper motives in granting such stay. The fairness and justice, as well as the intelligence, of those who criticise in this matter, is illustrated in a communication lately printed in the New York Tribune, wherein a valiant individual, not having been able to cause the ejectment from the front platform of

dence. The referee was not called upon, and could not pass upon, the question of joint intent before the evidence was admitted. If the defendant laid the foundation for its introduction, then the evidence must be admitted, even if the referee should finally conclude that the joint intent upon the whole case was not made out. Judgment affirmed. Cuyler v. McCartney, 24 N. Y. cited. Newlin and Noyes v. Lyon, Sheriff. Opinion by Barnard, P. J.

2. Action for conversion of plaintiff's property. Plaintiff produced evidence that he owned the specific property mentioned in the complaint, and that defendant without authority sold the same, and applied the proceeds to his own use. Held, that conceding that there was evidence from which the jury might infer that defendant was authorized to sell, it was a question for the jury. The court should have sent the case to the jury to pass upon the evidence. Judgment reversed and new trial ordered. Read, ex'r, v. Lambert. Opinion by Barnard, P. J.

3. Impeachment of witness.-The question was whether the amount of $131.33 was a balance struck between the parties in favor of the plaintiff, on a certain date. The parties were each sworn upon the trial and testified upon this point in direct contradiction to each other. The referee who had to pass upon the conflicting testimony admitted testimony by one S., that in a matter not connected with this suit, plaintiff had claimed of him, S., more than plaintiff's real claim. Held, that the referee erred in admitting said testimony. This was an impeachment of plaintiff, in a manner unknown to the law. The issue was between these parties, and the case of S. had no legal relevancy to it. Fluck v. Finke. Opinion by Barnard, P. J.

Also, see Negligence, Damages, Life Insurance.
FRAUDULENT CONVEYANCES. See Evidence.

HOMICIDE. See Murder.

INFANTS. See Real Estate.

Waiving forfeitures on policies: agents.-Action upon a policy of life insurance upon the lives of the plaintiff and her husband, and upon the death of either, payable to the survivor. The husband died, and plaintiff sues upon the policy. The defendants answer that the policy had lapsed and became void by reason of the failure to pay the premiums when they became due. The premiums were, in fact, paid by the plaintiff after the time for payment had expired, to one Holly, a person employed by the company, and whom plaintiff found at a desk, behind the railing, at their place of business. She paid, after an inquiry as to the past payments, and after Holly had examined defendants' books, and given her the information sought. She asked if she could pay the back premiums, and was answered "certainly you can." The defendants claim that this person was not authorized to receive past due premiums, and by receiving them to waive the forfeiture. This case has been twice tried. Upon the first trial, the court directed judgment for the plaintiff. This judgment was reversed at general term, upon the ground, that as the case then stood the plaintiff was not entitled to recover, and that in any aspect it was error to order a verdict for the plaintiff upon a state of facts which should have gone to the jury, and also because of the erroneous exclusion of evidence offered, to wit: the charter and by-laws of defendant's company. On the second trial the court directed a verdict for defend

ant, and plaintiff takes this appeal. Held, that whatever the terms of the policy, and the rules and regulations of the company were, it had power to waive them, not only by express formal waiver, but also by the ordinary custom and mode of dealing with its patrons. No corporation should be permitted to annul the effect of the customary method of his dealings and business by invoking the force of its laws and regulations which it has practically disregarded, and, if in this case it has compromised the effect of its rules by their frequent and habitual suspension, and if it has allowed those to act or to seem to act as officers, who were not officers, its formal regulations against such a course of dealing can avail nothing. Its liabilities in this action are to be determined by its own conduct. It should have been submitted to the jury upon the whole case, to determine whether the defendants, by the conduct of their business, and the character of the different duties performed by Holly, had or had not authorized the plaintiff to rely upon the transactions with Holly in the matter of the overdue premiums, as a transaction with the company itself. Judgment reversed and new trial ordered. Koelges v. Guardian Life Insurance Company. Opinion by Barnard, P. J.

MORTGAGES.

1. What is a mortgage: usury. - The defendant, Mrs. Dannin, had a promise from Freeman, the owner of certain land in question, that he would convey it to her, and had a conveyance in blank. The plaintiff refused to loan to her. The deed was then given by Freeman to the plaintiff with her assent, and she received a written agreement from plaintiff that he would sell the premises to her in four months for $5,650, being $150 more than the plaintiff had paid for the same. Held, the referee erred in his finding of the fact that the deed given to plaintiff was a security in the nature of a mortgage, for money loaned to Mrs. Dannin. She had no title to the lands; gave no deed and received no money from plaintiff. She was not bound to take the property from him or pay him any money. The only claim the parties had against each other was under the agreement, either by action at law for its breach, or in equity for its performance. There was no loan. There could be no usury. The statute protects a borrower of money and not a purchaser of real estate. Fiedler v. Dannin. Opinion by Barnard, P. J.

2. Mortgages under laws of other States. -The question whether the mortgage sued on in this case is valid under the laws of Pennsylvania, is one of fact. The evidence given on that point sustains the finding. Although there is no statute in that State on the subject of mortgages on personal property, yet by the unwritten law a mortgage may be given upon a vessel at sea, and be valid if possession is taken within a reasonable time after her return into port. In this case the plaintiffs took possession of the vessel as soon as there was default in the payment of the advances to be made by plaintiffs and secured by the mortgage. This is in accordance with the laws of Pennsylvania. When plaintiffs took possession no creditor had levied or attached, and it would be most unjust to hold that a subsequent judgment could take the property from plaintiffs. Wallson v. Campbell. Opinion by Barnard, P. J.

Also, see Abstract of Title.

MURDER.

In the absence of evidence showing, or tending to show, that the acused, at the time of the homicide, was