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What is an
It will perhaps be convenient to consider in the first place, what is such an annexation to the freehold as will bring a chattel within the general rule; and then to proceed to inquire, in what cases the rule is relaxed with respect to an executor or administrator.-In order to constitute such an annexation it is necessary that the article should be let into or united to the land, or to substances previously connected therewith. It is not enough that it has been laid upon the land, and brought into contact with it: The rule requires something more than mere juxta-position; as, that the soil shall have been displaced for the purpose of receiving the article, or that the chattel should be cemented, or otherwise fastened to some fabric previously attached to the ground (r): As an illustration may be mentioned in the case of Culling v. Tuffnal (s) before Treby, C. J., at Nisi Prius, where it was holden that the tenant who had erected a barn upon the premises, and put it upon pattens and blocks of timber lying upon the ground, but not fixed it in or to the ground, might take it away at the end of his term (t). On the other hand, where the tenant had erected a veranda, the lower part of which was attached to posts which were fixed in the ground, Abbott, J., held, that the tenant could not remove any part of it (u). In the case of R. v. Londonthorpe (x), where a tenant had built on part of the land a post windmill constructed upon cross traces, laid upon brick pillars, but not
Hardwicke,C., in Dudley v. Warde,
(r) Treatise on Fixtures, p. 2.
(8) Bull. N. P. 34.
(1) In Buller, it is said to have been holden, that he might do so by the custom of the country : but Lord Ellenborough, in adverting to the case (in Elwes v. Maw, 3 East, 55,) observes, that the tenant might
have done so without any custom ;
(u) Penry v. Brown, 2 Stark. N. P. C. 403. In this case the tenant had covenanted to repair and keep in repair the premises, and all the erections, buildings, and improvements, which might be erected thereon during the term, and yield up the same in good and sufficient repair.
(x) 6 T. R. 377.
attached or affixed thereto; the Court held, that the wind-
Moreover, the object and purpose of the annexation must be regarded : For if a chattel be fixed to a building, merely for the more complete enjoyment and use of it as a chattel, it still, it should seem, remains à chattel, notwithstanding it is annexed to the freehold; and is never a part of it, any more than a carpet which is attached to the floor by nails for the purpose of keeping it stretched out: And on this principle it was held, that cotton spinning machines, screwed into and fixed firmly to the floor, were chattels, and distrainable for rent (a).
But there may be a sort of constructive annexation of a constructive
(y) So in R. v. Otley, Suffolk, mill, not being affixed to the free-
chattel not actually affixed to the freehold : as if a man has
It has been laid down, that dung in a heap is a chattel,
freehold (d). In what cases The second branch of the inquiry respecting fixtures executors are entitled to
remains to be investigated, viz., when chattels personal sever fixtures : have been affixed to the freehold, and have thus lost their
chattel character, under what circumstances the executor or
so as to form part of the estate of the personal representative. 1. Right of the 1. The subject will first be considered as between the tenant in fee executor or administrator, and the heir of tenant in fee.
In this case, the old rule of law above mentioned, "quicquid
plantatur solo, solo cedit,” still obtains with some rigour in
to fixtures as
(6) Liford's case, 11 Co. 50, b. (d) Yearworth v, Pierce, Aleyn, Place v Fagg, 4 Man. & Ryl. 277. 32. S. C. nomine Carver r. Pierce,
(c) R. v. Crosse, 1 Sid. 207, by Sty. 66. See Higgon v. Mortimer, Clench and Fenner, Justices. 5 C. & P. 616,
contemplate,) still greater latitude and indulgence has been allowed in favour of the tenant (e). It must, therefore, carefully be observed, that an instance of the right allowed to a tenant as against his landlord, is no authority for its allowance to an executor as against the heir, or the remainder-man or reversioner; nor does it follow, that because the executor of tenant for life or in tail is entitled to certain fixtures, that the executor of tenant in fee will also be entitled.
The rule, as anciently established, between the executor Old rule beand heir of tenant in fee seems to have had no exceptions ; ecutor and heir
tween the exwhatever was affixed to the freehold descended to the heir of tenant in as parcel of the inheritance.
6. The law is the same,”
say's Godolphin (f), “concerning all things fastened to the free. hold, or to the ground by mortar or stone, as tables, dormants, leads, mangers, millstones, anvils, doors, keys, glass windows, and the like; for none of these be chattels, but parcels of the freehold, and, therefore, belonging to the heir, not the executor.” So it is said in the Touchstone (g), “ the inci. dents of a house, as glass windows annexed with nails or otherwise to the windows, the wainscot fixed by nails, screws, or irons put through the posts or walls, tables, dormants, furnaces of lead and brass, and vats in a brew and dye-house standing and fastened to the walls, or standing in or fastened to the ground in the middle of the house, (although fastened to no wall), a copper, or lead, fixed to the house, the doors within and without that are hanging and serving to any part of the house, shall not go to the executor or administrator to be divided and sold from the house." So it is laid down in Noy's Maxims (h), “all chattels shall go to the executors, as vats and furnaces fixed in a brew-house or dye-house by the lessee; but if they be fixed by tenant in fee, the heir shall have them" (i).
(e) Elwes v. Maw, 3 East, 51, in Lord Ellenborough's judgment. See also Lord Kenyon's judgment in Penton v. Robart, 2 East, 90, 91.
(f) Pt. 2, c. 14, s. 1.
Relaxations But in modern times some relaxations of the rule hare with respect to executor's
obtained; which may be considered, 1st, with respect to fix
tures put up by the tenant in fee for the purposes of trade; the heir, to trade fixtures : and 2ndly, with respect to fixtures put up by him for orna
ment or domestic convenience. As to trade fixtures, the
pl. 5. Wentw. Off. Ex. 149, 150,
(k) Ex relatione Wilbraham, in
Dudley v. Lord Warde, Ambl. 114,
(1) 3 Atk. 15.
(n) 12 Cl. & F. 312, 323, 329, 331.