Page images

2. The manure from the hotel stable, which is agreed to have been personal estate, and was included in the inventory, must be accounted for by the administratrix ; and it is no sufficient account to say that she has expended it upon the real estate which has since been sold for the payment of debts. There is no way in which it can be made certain that it has increased the amount received from the sale of the real estate ; and if this were established, an administratrix has no right thus to expend the personal property of her intestate.

[ocr errors][ocr errors]
[merged small][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors]



Note. — As the subject of the annexation of buildings to land runs by imperceptible degrees into that of the annexation of fixtures, cases on it are included in this chapter.

[blocks in formation]

[Reported Year Book, 20 Hen. VII. 13, pl. 24.) Action of trespass brought against executors by one Henry after the death of his ancestor for the taking of a furnace which was fixed and annexed to the freehold with mortar. And the opinion of the court, viz. Lord READ, Chief Justice of the Common Bench, FISHER, and KINGSMILL, his fellows, was that the taking was tortious. For those things which cannot be forfeited by outlawry in personal actions, nor be attached in assise, nor distrained by the lord for rent, such things the executors will not have ; but a furnace or table fixed to the ground with posts, or a paling, or a bed covering, timber or board annexed to the freehold, or a door and windows, and such other like things which are annexed to the freehold, and are made for a profit of the inheritance, cannot be forfeited by outlawry nor attached on distress. Ergo ex consequente sequitur that the executors will not have such things, and althougb the testator could have given these things in his lifetime, non sequitur that they will have them. And so the executors will not have any documents concerning the land, although the testator bought them, for they are appurtenant to the inheritance. And if the lessee for years makes any such furnaces for his advantage, or a dyer makes his vats and vessels to carry on his business (pur occupier son occupation] during the term, he can remove them ; but if he suffers them to remain fixed to the land after the end of the term, then they belong to the lessor; and so of a baker. And it is no waste to remove such things within the term, according to some; and that will be contrary to the opinions aforesaid ; for then it will not be adjudged parcel of the freehold. But in H. 42 E. III., it remained therefore doubtful, whether this was waste or not. T. 21 Hen. VII. 26.1

So a mortgagee in possession, after decree on a bill to redeem, but before possession taken, can remove his fixtures. Taylor v. Townsend, 8 Mass. 411.



(Reported Year Book, 21 Hen. VII. 26, pl. 4.] In trespass the case was this. A man was seised of a house in fee simple, and made a furnace, viz. of lead, in the middle of the house, and it was not fixed to the walls of the house. He made executors and died, the heir entered, and the executors took the furnace, viz. of lead, and the heir brought an action of trespass.

Pollard, It seems that the action lies ; for such things as are fixed and annexed to the freehold will descend to the heir with the inheri. tance, and so they will pass by feoffinent with the freehold; as where vats are fixed in the ground, or in a brewhouse or dyebouse, they are appurtenant to the freehold, and altered from the nature of a chattel. And where a paling is made to enclose an enclosure or pond, the executors will not take it, but the heir will have it. So of things fixed to the inheritance they belong and pass with the inheritance and the freehold. And so in some cases such things as are not annexed to the land and the freehold descend and pass with the inheritance as the windows : they are not ised, and yet neither the executors nor the termor will take them, but the heir will have them, because a house is not perfect without the doors and windows. But it is otherwise with glass, for a house is perfect enough, although it has no glass; and so there is a diversity. But in the case here, this furnace is altered by this fixing from the nature of a chattel. For it is adjudged in our books that an attachment in assise for a furnace is not good; and the reason is that it is not a removable chattel; and so the action here for the heir seems maintainable.

Grevill. Although this furnace so fixed to the land, yet it is not therefore proved that it will go with the inheritance, so that it cannot be severed from the inheritance, for by such a reason if anything was fixed to the land by the tenant for term of years, it will be immediately called parcel of the inheritance, and the terınor will not take it; and this is not so, for although he fixes a post in the ground during the term, and he retakes it within the same term, yet the lessor will not retake it. And in our case here it appears that this furnace was fixed to the ground within the house, so that the inheritance is none the worse for it, and where a furnace was fixed to the wall of the house, the better opinion in 42 E. III. was that it is not waste, although the termor takes it; and so it seems here, that the executors will take it, and the action is not maintainable.

Eliot. There is a difference when such a thing is fixed by the reversioner, and when the termor; for when it is done by the reversioner, and then he leases it rendering a certain rent, now it is made parcel of the reversion, for it makes the rent which is reserved on such a lease more than it would be if such a fixing had not been made. As where one

« PreviousContinue »