7

sustained that one who purchases machinery with a view that it shall be annexed to, or placed in, a building of which he is the owner, and who executes a chattel mortgage on the property so purchased, thereby evinces his intention that the property shall retain its character as personalty, regardless of the manner in which it may be annexed to the freehold. Except where the rights of innocent purchasers are involved, it is the policy of the law to uphold such contracts in the interest of trade." It was also held in this case that if the detachment of the fixtures covered by the chattel mortgage would occasion some diminution in value of the freehold, as it would have stood had the attachment not been made, then the depreciation must be made whole by the chattel mortgagee to a junior mortgagee of the freehold, and the rights of the parties adjusted by the court according to the equity of the case.

8

$568. Gas chandeliers.

Stoves.- Meters, etc.

But while the quotations made in the preceding sections seem to lay down rules easily understood, yet trouble arises in

6 Citing Eaves v. Estes, 10 Kan. 314; Ford v. Cobb, 20 N. Y. 344; Sisson v. Hibbard, 75 N. Y. 542; Tift v. Horton, 53 N. Y. 377; Campbell v. Roddy, 44 N. J. Eq. 244; 14 Atl. Rep. 279; Henkle v. Dillon, 15 Ore. 610; 17 Pac. Rep. 148.

7 Binkley v. Forkner, 117 Ind. 176; 19 N. E. Rep. 753. The court cites and comments on Pierce v. George, 108 Mass. 78, where a subsequent mortgage of the real estate took precedence of a previous chattel mortgage of machinery attached to the building; and also cites Hunt v. Bay State Iron Co., 97 Mass. 279. See United States v. New Orleans R. R., 12 Wall. 362, and Fosdick v. Schall, 99 U. S. 235. "The distinction," said the court in Binkley v. Forkner, supra, "between chattels whose completeness and identity as separate and distinct articles may be preserved notwith

standing their annexation, and those which necessarily become absorbed or merged in the realty by being annexed must be kept in view."

8 Binkley v. Forkner, 117 Ind. 176; 19 N. E. Rep. 753.

Electric lighting fixtures used in and about a theatre that can be detached without injury to the building, such as switchboard to connect a dynamo to the permanent wiring of such building, chandeliers and electric signs, are chattels and not part of the realty in New York. New York Life Ins. Co. v. Allison, 107 Fed. Rep. 179; 46 C. C. A. 229. The retention of the title to a portable furnace by the vendor gives him an implied right to retake it if not paid for, even after it is set up; so that it is not included in a prior mortgage on the realty. Duffus Howard Furnace Co.. 8 N. Y. App. Div. 567; 40 N. Y. Supp. 925.

their application. Thus, it has been held that gas chandeliers in a house, attached by screws to pipes conveying the gas are not part of the realty. "Gas fixtures," said the court, "whether in the form of chandeliers suspended from the ceiling at the top of the room, or projecting as brackets from the perpendicular walls, though attached to pipes by screws and made tight by cement, are in the nature of furniture, and do not lose their character as chattels by reason of the manner in which they are affixed.” Accordingly, therefore, to the greater number of authorities, gas fixtures, chandeliers, gaseliers, candelabra, sconces, and other instruments used as substitutes for oil lamps and candles in lighting a house, and gas stoves, will not pass to the vendee of the realty as a part of it. They are regarded as personal prop erty, and do not pass by the ordinary deed of conveyance."

Towne v. Fiske, 127 Mass. 125; 34 Am. Rep. 353. So it was held, because of the character of the article, that an action of tort would not lie for their conversion. Guthrie v. Jones, 108 Mass. 191.

10 Rogers v. Crow, 40 Mo. 91; 93 Am. Dec. 299; Shaw v. Lenke, 1 Daly 487. In this last case it is said that, "the adjustment of the bracket or chandelier to the gas pipe is not such an actual annexation to the freehold as is contemplated by law." Kirchman v. Lapp, 19 N. Y. Supp. 831; Vaughen v. Haldeman, 33 Pa. St. 522; 75 Am. Dec. 622; Jarechi v. Philharmonic Society, 79 Pa. St. 403; 21 Am. Rep. 78; Penn. Mut. Life Ins. Co. v. Thackara (Pa.), 10 Wkly. W. N. C. 104; 11 WRIу. W. N. C. 391; 13 Reporter 731; McLean v. Palmer, 2 Kulp (Pa.) 349 (oil lamps); Wilson v. Freeman, 7 Wkly. W. N. C. (Pa.) 33 (chandeliers in a saloon); Voorhis v. Freeman, 2 Watts. and S. 116; 37 Am. Dec. 490; Heysham v. Dettre, 89 Pa. St. 506 (heaters). In England a statute authorized a gas company to let for hire to

66

the user of gas
any fittings for
the gas," and declared that such
"fittings" should not be the sub-
ject of distress when let to his ten-
ant. This statute was held to cover
a gas stove, used for heating pur-
poses only, and rented to a tenant.
Gaslight and Coke Co. v. Hardy,
17 Q. B. Div. 619; 56 L. J. Q. B.
168; 55 L. T. 585; 36 W. R. 50; 51
J. P. 6. And the same rule was
adopted where a stove was used for
cooking, containing besides the
burners and the chamber in which
the gas was consumed, other cham-
bers together with grates, hot plates
and arrangements for the reception
of cooking utensils." Gaslight and
Coke Co. v. Herbert Smith, 3 Times
Law Rep. 15. Gaslight and Coke
Co. v. Hardy, 56 L. J. Q. B. 168.

66

Meters put upon premises by a gas company, and attached to the gas pipes by solder, and by means of those pipes to the company's main, belong to the company. Regina v. Inhabitants of Lee, L. R. 1 Q. B. 241; 35 L. J. M. C. 105; 12 Jur. (N. S.) 225; 13 L. T. (N. S.) 704; 14 W. R. 311. City removing

Gas chandeliers so far partake of the nature of personal property, that a thief who severs and immediately carries them away may be convicted of larceny.11

The rule as between vendor and vendee is applicable to an instance where the premises are sold under judicial or other like process; and the right of the former owner and purchaser at such sale are determined exactly the same as if the former owner had himself sold the premises to the purchaser under the enforced sale.12 And this is true even though the sale is one conducted under the provisions of a mortgage.

$570. Gas fixtures may pass to vendee.

As intimated in a previous section, the ordinary gas fixtures may pass to the vendee. In a New York case it is said that they may pass as a part of the realty, if the intent that they shall so pass is shown by acts and declarations of the vendor.1 some of the cases go farther than this. Thus in England it was said: The gaseliers (chandeliers) are a part of the gas pipes, and, to use a legal expression, they take their nature and are

included in the fixtures which go with the house under the lease. They are as much a part of the gas pipes as the mill stones are part of the mill. Although the gaseliers may be unscrewed and taken off without injuring the freehold, they are necessary to the enjoyment of the gas pipes, which are of no practical use when separated from them.” 15 And in America are cases holding gas fixtures to be a part of the realty. Thus in New Jersey it was said: "Gas burners are fixtures. furniture, but are mere accessories to the mill.

They are in no sense
The apparatus

for the manufacture of gas (called a generator) is situated in a pit made expressly for it in a small building built for it a short distance from the main building. It is connected with a gas pump in the building, and the pipes are attached to the beams and girders by hooks, and in some places pass through the holes in the side walls, bored for the purpose. The genera

tor and its appurtenances, and the pipes are fixtures." 16 What is said about " gas burners" may be regarded as a dictum; but it is evident that the court would have held them to be a part of the realty if there had been a controversy over them. In Kentucky it is held that chandeliers, affixed by means of screws to iron pipes let into the walls of the house, in order to conduct gas to the burners, even though they could be moved without injury to the walls or ceilings, and which formed an ornamental addition to the house, belong to the vendee as between him and the vendor, being a part of the real estate.1 And in New York it was held that gas logs may be fixtures if the intention of the owner was to make them such; and that the intention was to be determined from such owner's acts and conduct, and from all the circumstances of the transaction.18

15 Sewell v. Angerstein, 18 L. T. (N. S.) 300. See also Hutchinson v. Kay, 23 Beav. 413.

16 Keeler v. Keeler, 31 N. J. Eq. 191, 191. In Hays v. Doane, 11 N. J Eq. 84. it is held that a gasometer and apparatus for generat ing gas, are movable property, and not fixtures, as between landlord and tenant.

So in the same State it

17 Johnson v. Wiseman, 4 Met. (Ky.) 357; 83 Am. Dec. 475.

18 Cosgrove v. Troescher, 62 App. Div. (N. Y.) 123; 70 N. Y. Supp. 764. Same rule applied to gas fixtures. Daniels v. Detwiler, 14 Mont. Co. L. Rep. 58; 15 Lanc. L. Rev. 165.

19

was held that gas pipes passed to the vendee of a store, although they were put in by the tenant of the vendor, who had a right to remove them as against his landlord. In Ohio it was held by the nisi prius court that where chandeliers and gas brackets were affixed to a building in a manner to indicate an intention on the owner's part to make them a part of such building, they were fixtures and passed to the vendee.20 So in Pennsylvania a gas machine, a part of a suburban dwelling house, put in at the time the house was built, and connected with it by underground pipes running through the foundation walls and joining in the house permanent machinery; and to this machinery was connected the ordinary gas pipes of a house, was held to be subject to a mechanic's lien, and therefore part of the realty." But it has also been held in that State that gas fixtures do not pass to the vendee of the realty, in the absence of an intent that they shall be included in the sale.22 In California a hotel was conveyed "with the appurtenances thereunto belonging." This conveyance was made in pursuance of a written agreement providing that the vendor might remove his furniture, carpets and pictures, but none of the "permanent fixtures and appurtenances." Under these facts the court considered that there was a special agreement concerning the gas fixtures and fittings, the kitchen range, water filter, tanks and mosquito screens, to the effect that they were to go with the real estate.2

19 Smyth v. Sturges, 108 N. Y. 495; 15 N. E. Rep. 544; affirming 30 Hun 89.

20 Central Trust, etc., Co. v. Cincinnati, etc., Co., 26 Wkly. Law Bull. 149; 10 Ohio Dec. Rep. 348. So in Pennsylvania. Daniels V. Detwiler, supra.

21 Light Co. v. Gill, 14 Pa. Co. Ct. R. 6.

23

22 Daniels v. Detwiler, 15 Lanc. L. Rev. 165; 14 Mont. Co. L. Rep. 58.

23 Fratt v. Whittier, 58 Cal. 126; 41 Am. Rep. 251.

Of course, a special agreement supersedes the general rule and controls the right to remove gas fixtures. Wall v. Hinds, 4 Gray 256; 64 Am. Dec. 64.