The suit. We are at a loss to understand how those proceedings could give him a title distinct from that which he derived from McNeil. He was cited and appeared in the suit in the capacity of trustee. The representatives of Sprague litigated and contracted with him in that capacity, and he has no color of title beyond the deed which is alleged to have created the trust. The property was McNeil's, and the last act of the court in the partition was to order the fees of the counsel appointed to represent him to be paid out of it.

The plaintiff has no title upon which he could maintain a petitory action in his own name, even against a naked possessor. The judgment is therefore affirmed, with costs.

SLIDELL, J. I incline to the opinion, that as against creditors of McNeil, and those holding under them, the conveyance should be considered as in the nature of a contract of mortgage. But viewed in that light, it does not authorize the plaintiff to sustain a petitory action. I therefore concur in the affirmance of the decree. I may add, that if the plaintiff were now prosecuting an hypothecary action, it probably could not be sustained on the evidence before us.

ASSIGNMENT OF PERSONAL PROPERTY for the benefit of third persons, as such, made and executed in New York by a citizen of Louisiana, is valid: Hullin v. Faure, 15 La. Ann. 622. Personal contracts made in other states upon movables, which work no injury to our citizens, will be enforced in this state: Tyree & Co. v. Sands & Co., 24 Id. 365; and see notes to Ripka v. Pope, ante, 579.

MACKIE v. SMITH.

[5 LOUISIANA ANNUAL, 717.]

ALL MOVABLE FIXTURES PERMANENTLY ATTACHED to a building become immovable.

MIRRORS WILL BE CONSIDERED AS FIXTURES when they have been placed in recesses in the walls made to receive them, and which when removed would leave the recesses in a rough and unfinished state.

MIRRORS WHEN PERMANENTLY ATTACHED to the walls will pass with a sale of the building to the purchaser.

THE facts are stated in the opinion.

Joseph and Halsey, for the plaintiff.

Hoffman and H. D. Ogden, for the defendant.

By Court, ROST, J. The heirs of Benjamin Story, of whom the plaintiff is one, caused a judicial sale of the property com

prising his succession to be made for the purpose of effecting a partition.

The question presented by this case is, whether two valuable mirrors, found in one of the rooms of his dwelling-house, passed under the adjudication of the house made to the defendant. The district court held that they did not, and he has appealed.

The plaintiff alleges, and has shown, that at a previous sale of the movable effects of the succession the mirrors were adjudicated to her, but as the knowledge of that fact is not brought home to the defendant, we have only to inquire whether, under article 459 of the code, they had been attached permanently to the building by the deceased; if they were, the defendant has acquired them. It is shown that they were not affixed to the building with plaster or mortar, and that they could be removed without being broken or injured. It is further contended by the appellee that they might have been removed without breaking or injuring the part of the building to which they were attached, and that, as this case comes under none of the provisions of article 460 of the code, the judgment should be affirmed.

On this question of facts the testimony is conflicting, and if the cases specified in article 460 could be construed as limiting the general disposition of the preceding article, we would pay great deference to the opinion of the district judge; but we do not think this interpretation can be sustained. Article 459 provides that all such movables as the owner has attached permanently to the building are immovable by destination; it embraces all cases in which the movable has been placed by the owner ad integrandum domum; and when none of the presumptions established by article 460 exist, the fact may be shown by any competent evidence: 2 Toullier, p. 8, No. 16; 4 Duranton, p. 63, No. 68.

It is shown in this case that, after Mr. Story purchased the mirrors, recesses four and a half inches deep were cut in the walls of the room to receive them; that they were placed in those recesses and secured in their places by means of architraves or large wooden frames, which were nailed to plugs of hard wood fastened in the wall. The frames of the mirrors had grooves in them corresponding to a tongue in the architrave, and nails were driven from one to the other to make the glass more secure. The recesses were left rough and unfinished; the glasses and architraves being clearly intended as a permanent finishing of the wall. It is difficult to conceive a case more strictly within the letter and spirit of article 459 of the code.

The code of France provides that if a niche be made in a wall to receive a statue, the statue placed there, though in no manner attached to the building, becomes immovable by destination; and such we believe was the Roman law. This is a much stronger case for the application of the rule.

It is therefore ordered, adjudged, and decreed, that the judgment of the court below be reversed, and that there be judgment in favor of the defendant, with costs in both courts.

What are FIXTURES.-Things personal may become a part of the realty: 1. By incorporating them therewith for permanent use; 2. By annexation for any object in such a manner that they can not be removed without dilapidation or injury to the inheritance: Hunt v. Mullanphy, 14 Am. Dec. 300, and note 305. Tapestry, pictures in panels, frames filled with satin and attached to the walls, statues, figures, vases, and stone garden-seats have been held to be a part of the realty: See note to Gray v. Holdship, 17 Id. 691. Fire-frames are fixtures when fixed with bricks on the sides laid in between the sides of the fire-frame and the jambs of the fire-place: Gaffield v. Hapgood, Id. 290, and note 293; Voorhis v. Freeman, 37 Id. 490; Cross v. Marston, 44 Id. 353.

CASES

IN THE

SUPREME JUDICIAL COURT

OF

MAINE.

INHABITANTS OF SCHOOL DISTRICT NUMBER FOUR, IN WINTHROP, V. BENSON ET AL.

[31 MAINE, 381.]

MERE POSSESSION OF LAND OF ITSELF does not necessarily imply a claim of right.

TERMS "OPEN," "NOTORIOUS," "ADVERSE," AM) "EXCLUSIVE," when applied to the manner in which land is heid, dicate a claim of right. The terms constitute a definition of dieselsin, and will be so construed unless explained by other evidence.

DISSEISEE'S RIGHT OF ENTRY or any action by him to recover the right to enter is barred by limitation when the disseisors have held the premises by a continual disseisin for twenty years.

DISSEISOR MAY, PREVIOUS TO DISSEICIN having been perfected, relinquish his possession to the disseisee and thus extinguish his claim thereto. ITLE OBTAINED BY DISSEISIN can only be transferred by deed. It can not be lost by parol abandonment or relinquishment.

WRIT of entry. Plaintiffs had occupied a portion of a lot or the whole of it for more than forty years for a school-house, wood-shed, and yard. The first building erected in 1802 was taken down in 1818, and a brick building erected. In 1824 a shed was built near it, and in 1847 the shed was removed to another side of the school-house by direction of the school agent, he having been informed by defendants that the district had no title to the land whereon the shed had stood previous to the removal of it. A meeting was held and the residents of the district took action to assert the claim of the district to the land in question. Suit was brought by the plaintiffs, basing their claim upon a title by an open, notorious, adverse, and exclusive

possession of the land for a period of twenty years. Defendants contended in reply that the action of the school agent in 1847 in removing the building at the request of the defendant, and the town having paid for the expense of removal, such act was equivalent to an abandonment of plaintiffs' seisin and a surrender of it to the defendants.

May, for the plaintiffs.

Evans, for the defendants.

By Court, WELLS, J. The jury were instructed, that if, in 1847, the agent of the school district, at the request of the defendants, removed said wood-house where it now is, intending to relinquish and give up the land, and the district had subsequently ratified his acts by their conduct or otherwise, of which they were the judges, then such abandonment, notwithstanding the district might before that time have had an open, adverse, exclusive, and notorious possession of the land, or some part of it, for more than twenty years, would operate an abandonment of their possession, and a surrender of their claim to the former owners thereof, and the plaintiffs could not recover the said land in this suit.

It is true, that a mere possession of land of itself does not necessarily imply a claim of right. The tenant may hold in subjection to the lawful owner, not intending to deny his right or to assert a dominion over the fee. But the terms " open," "notorious," "adverse," and "exclusive," when applied to the mode in which one holds lands, must be understood as indicating a claim of right. They constitute an appropriate definition of a disseisin, and the acts which they describe will have that effect if not controlled or explained by other testimony: Little v. Libbey, 2 Greenl. 242 [11 Am. Dec. 68]; The Proprietors of Kennebec Purchase v. John Springer, 4 Mass. 416 [3 Am. Dec. 227]. An adverse possession entirely excludes the idea of a holding by consent. If the plaintiffs have held the premises by a continued disseisin for twenty years, the right of entry by the defendants is taken away, and any action by them to recover the same is harred by limitation: Stat., c. 147, sec. 1.

A legal title is equally valid when once acquired, whether it be by disseisin or by deed, it vests the fee simple although the modes of proof when adduced to establish it may differ. Nor is a judgment at law necessary to perfect a title by disseisin any more than one by deed. In either case, when the title is in controversy, it is to be shown by legal proof, and a continued