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seems to be the doctrine enunciated in the Uniform Sales Act, whenever the sale contract provides for severance.

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45. Fixtures. In England, the maxim, quod plantatur solo, solo cedit, is applied strictly, almost harshly. Accordingly, buildings, or other structures,' originally intended as permanent accessions to the land, although at the time of the contract doomed to removal,2 machinery, and house decorations * affixed in a permanent manner to the building, are treated as real estate. So are gold, silver, and other metals which have become so imbedded in the bricks of a smelting furnace that they cannot be removed without pulling down the furnace or breaking up some of the brick.5 As between the life tenant and remainder-man, also between the landlord and tenant, this rule has been relaxed "for the benefit of the public, to encourage tenants for life to do what is advantageous to the estate during their term," and "for the benefit of trade." Still, prior to the Sale of Goods Act, trade fixtures appear to have been treated in England not as goods, and a contract for their sale transferred only the right to sever them. That Act, however, classes as goods, "things attached to or forming a part of the land which are agreed to be severed before sale or under the contract of sale." And this provision has been copied into the Uniform Sales Act.10

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the contract is, in the interim, to confer upon the purchaser an exclusive right to the land for a time, for the purpose of making a profit of the growing surface, it is affected by the statute, and must be in writing, although the purchaser is at the last to take from the land only a chattel. . . . It would be a perversion of the objects of the statute to hold as invalid the sale, in other respects legal, of the growing crop of peaches, with no intent of the parties to sell or purchase the soil, but affording a mere license, express or implied, to the purchaser to go upon the land, to gather the fruit and remove the same."

1 Forrest v. Greenwich, 8 E. & B. 890 (1858). Lavery v. Pursell, 39 Ch. D. 508 (1888).

Walmeslay v. Milne, 7 C. B. N. s. 115 (1859).

• D'Eyncourt v. Gregory, L. R. 3 Eq. 382 (1866).

Tottenham v. Swansea Zinc Ore Co., 52 L. T. 738 (1885).

• Lawton v. Lawton, 3 Atk. 14 (1743).

7 Sanders v. Davis, 15 Q. B. D. 218 (1885).

Lee v. Gaskell, 1 Q. B. D. 700, 701 (1876).

956 & 57 Vict. ch. 71, § 62.

10 Mass. L. 1908, ch. 237, § 76.

46. Trade Fixtures in the United States. In the United States, however, the maxim is applied less rigorously. Trade fixtures are not only favored, but the law deals with them as chattels. Accordingly, stone piers, built by a railroad company as a part of its equipment, are to be treated as personalty upon the abandonment of the road, for the reason that articles merely accessory to a business carried on upon land, and not intended as permanent accessions to the land, "retain the personal character of the principal to which they belong, and are subservient." "2 It has been judicially declared that in "applying the Statute of Frauds, buildings are not classed with forest trees, but with growing crops, nursery trees, and fixtures attached to realty. And buildings are realty or personalty, according to the intention of the parties. And when the parties in interest agree that they may be severed and moved from the realty, buildings are held and treated as personalty." In most jurisdictions, however, the parties cannot by an oral contract convert a building from real property into a chattel. Hence, the land and the building are owned by the same. person, an oral reservation of the building by the owner when conveying the land by deed is inoperative; and a contract for the sale of the unsevered materials of a ruined building is one for the transfer of an interest in land, and not for the sale of chattels.5 Under the provision of the Uniform Sales Act, referred to in the last section, the subject-matter would be goods, if it were agreed that the materials should be severed before sale, or under the contract of sale.

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1 Russell v. Richards, 10 Me. 429 (1833); Strong v. Doyle, 110 Mass. 92 (1872); Sawyer v. Strong, 86 Me. 541; 30 At. 111 (1894); Burdick's Cases on Sales, 18; Edwards v. Rank, 57 Neb. 323; 77 N. W. 765 (1899); Burdick's Cases on Sales, 643; Wickes Brothers v. Island Park Assoc., 229 Pa. 400; 78 At. 934 (1910).

2 Wagner v. Cleveland & Toledo Railway, 22 Ohio St. 563, 577, 578 (1872).

3 Long v. White, 42 Ohio St. 59 (1884).

Noble v. Bosworth, 19 Pick. (Mass.) 314 (1837); Leonard v. Clough, 133 N. Y. 292; 31 N. E. 93; 16 L. R. A. 305 (1892); Beeler v. C. C. Merc. Co., 8 Idaho, 614; 70 Pac. 943; 60 L. R. A. 283 (1902).

Meyers v. Schemp, 67 Ill. 469 (1873). But see Scales v. Wiley, 68 Vt. 39; 33 At. 771 (1895).

By agreement, also, the parties can prevent buildings1 or machinery 2 from becoming a part of the realty, although they may be affixed to the land with the intention that they shall form a part of the realty when fully paid for; except as against bona fide mortgagees or purchasers of the realty.3

47. Contract for Sale of Land and Goods. A single contract for the sale of chattels, and for the transfer of an interest in land, is not one for the sale of goods; and unless in writing is void in toto. The law of Louisiana treats as “part of the immovable" those things that have been added by the owner for the improvement and service of the property, such as cattle used in the cultivation of land, implements of husbandry, seeds, beehives, mills, kettles, and machinery, and all movables attached to a building by the owner with plaster or moisture. Nevertheless, it permits the unpaid vendor to enforce his privilege on the movable sold, even as against a mortgagee of the vendee.5

§ 7. The Property.

48. In order that a contract be one for the sale of goods, it must have for its object the transfer of the general property as distinguished from a special property therein. The pur

1 Peaks v. Hutchinson, 96 Me. 530; 53 At. 38; 59 L. R. A. (1902). 2 Nor. West. M. L. Ins. Co. v. George, 77 Minn. 319; 79 N. W. 1028 (1899); Davis v. Bliss, 187 N. Y. 77; 79 N. E. 851 (1907); Landigan v. Mayer, 32 Ore. 245; 51 Pac. 649 (1898); McCrillis v. Cole, 25 R. I. 156; 55 At. 196 (1903); Hurxthal's Executors v. Hurxthal's Heirs, 45 W. Va. 584; 33 S. E. 237 (1898); Fuller-Warren Co. v. Harter, 110 Wis. 80; 85 N. W. 698; 53 L. R. A. 603; 84 Am. St. R. 867 and note, 877-901; York Manufacturing Co. v. Cassell, 201 U. S. 344; 26 Sup. Ct. 481 (1906).

3 Peck-Hammond Co. v. Walnut Ridge Dist., 93 Ark. 77; 123 S. W. 771 (1909); Wickes Bros. v. Hill, 115 Mich. 333; 73 N. W. 375 (1897); Watson v. Alberts, 120 Mich. 508; 79 N. W. 1048 (1899). Cf. Arnold v. Mining Co., 32 Nev. 447; 109 Pac. 718 (1910); Washburn v. Inter-Mountain Mining Co., 56 Ore. 578; 109 Pac. 382 (1910); Murray v. Bender, 125 Fed. 705; 60 C. C. A. 473; 63 L. R. A. 783 (1903).

4 Thayer v. Rock, 13 Wend. 53 (1834).

6 Sewell v.

5 Baldwin v. Young, 47 La. Ann. 1466; 17 So. R. 883 (1895). Burdick, 10 App. Cas. 74 (1884). See definition of general ownership by Folger, J., in Farmers' Bank v. Logan, 74 N. Y. 568, at p. 581 (1878); Burdick's Cases on Sales, 194.

chaser becomes the general owner of the goods, with untrammelled power to dispose of such ownership. Hence, a person who gives an order for goods, which he is to sell as agent for the owner, does not thereby contract for their purchase, though the written order, taken by itself, would indicate a sale contract.1

49. A Sale differs from a Mortgage. The buyer's rights are clearly distinguishable from those of a mortgagee 2 of goods, who, at common law, is the transferee of the general property therein, but with his ownership subject to defeasance by the mortgagor's performance of the mortgage conditions.3 Even if the conditions are not performed, and the mortgagee's title becomes absolute at law, it is subject still to an equity of redemption.*

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50. A Sale differs from a Pledge. His rights differ even more widely from those of a pledgee, who acquires only a special property in the goods. The pledgor remains the owner of the general property therein, and may sell it subject to the pledgee's interest. Such purchaser, even after default in paying the loan for which the goods are pledged, may maintain trover for them, if the pledgee refuses to deliver them to him upon his tender of the debt. Moreover, a change of possession is necessary to the validity of a pledge, but not to the validity of a sale or a mortgage at common law." In case of doubt whether a transfer of property, with an option to repurchase, is intended by the parties to be a sale or a pledge, the judicial tendency is to treat it as a pledge.

Still broader

51. A Sale differs from a Lien and a Trust. is the distinction between the rights of a purchaser of goods

1 Hillyard v. Hewitt, Ore. 120 Pac. 750 (1912). The Uniform Sales Act (§ 75), following the Sale of Goods Act, § 62 (4), excludes mortgages from its provisions, also pledges. Infra, ¶ 52. Brown v. Bement, 8 Johns. (N. Y.) 96 (1811).

♦ Patchin v. Pierce, 12 Wend. 61 (1834).

Cortelyou v. Lansing, 2 Caines' Cases, 200 (1805).

Franklin v. Neate, 13 M. & W. 481 (1844).

7 Parshall v. Eggert, 54 N. Y. 18 (1873); Ex parte Hubbard, 17 Q. B. D. 690, 697, 698, Bowen, L. J. (1886).

8 Murray v. Butte-Monitor T. M. Co., 41 Mont. 449; 110 Pac. 497 (1910).

and those of a lienor. The latter has a personal right to hold the goods, but has no authority to sell them, nor to transfer his right of possession.1

A pretended sale may be intended by the parties to operate as a trust. In such case the apparent purchaser does not become general owner of the goods, and the transaction may be set aside as fraudulent and void against the transferrer's creditors.2

52. Application of Foregoing Rules. While the legal distinction between a pledge, a lease, a consignment, or other bailment on the one hand,3 and a sale or an exchange on the other, is clear and unquestioned, its application to a concrete case is often difficult. In determining whether a particular transaction is a bailment or a sale, we must look to its substance rather than to its form. If it gives to one party all the rights which a vendor can legally claim, and confers upon the other all the rights which a purchaser can legally demand, it is a sale, no matter what name the parties may have applied to it. On the other hand, if it is in form a hiring of the goods,

1 Donald v. Suckling, L. R. 1 Q. B. 585, 612 (1866); Schofield v. National El. Co., 67 N. W. 645; 64 Minn. 527 (1896); Burdick's Cases on Sales, 46. For a statutory extension of lienor's rights over merchandise, see N. Y. Personal Property Law, § 45 (L. 1911, ch. 626).

2 Hall v. Feeney, 22 S. D. 541; 118 N. W. 1038 (1908), applying Rev. Civ. Code, §§ 1299, 2368, 2371.

State v. Stockman, 30 Ore. 36; 46 Pac. 851 (1896); Burdick's Cases on Sales, 50; Sattler v. Hallock, 160 N. Y. 291; 54 N. E. 667 (1899); Burdick's Cases on Sales, 646. In re Columbus Buggy Co., 143 Fed. 859; 76 C. C. A. 611 (1906). "This contract contains a plain stipulation that the goods are at all times subject to the order of the Columbus company until they are sold and that at the expiration of the term of the contract the Washburn company will return the goods which remain unsold. It was therefore a contract of bailment for sale and it was not subject to the statute of Oklahoma regarding conditional sales." Clark v. Gault, 77 Ohio

St. 497; 83 N. E. 900 (1908).

4 State v. Barry, 77 Minn. 128; 79 N. W. 656 (1899).

Smith v. Clark, 21 Wend. 83 (1839); The South Australian Ins. Co.

v. Randall, L. R. 3 P. C. 101 (1869).

• Crosby v. Delaware & Hudson Can. Co., 119 N. Y. 334; 128 N. Y. 641 (1891); Brown v. John Church Co., 55 Ill. App. 615 (1894); The Peoria Manufacturing Co. v. Lyons, 153 Ill. 427 (1894); Jordan v. Jones, 110 Ga. 47; 35 S. E. 151 (1900).

'Hutton v. Lippert, 8 App. Cas. 309 (1883).

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