Page images


white or arudt The tenant white erected a stable and two shots. Acrogreement betreem like and tenant for like e chict jonner had frivilege of either selling ar remooing the fildings. Renaut for life died before extention of white lease.

Irudt the remainder man sold the land & building the buyer Took passersion of the bacildungs. lwwtirin, admuiting vidare ? -as rumeur. To Beteen white runt for life the agreement finding Zenant for life cannot contract to affect the heritann the buildings rere fixtures the renainder-man is entitled to all the inproventute, which the lar kena ninates fixtures ud matter her sonstructed at then. Jud. for life

[blocks in formation]

more or less effect upon their judgment; but in a legal sense it was within their own province to weigh it as proof or as usage.

The last exception professes to call upon the court to institute a comparison between the testimony introduced by the plaintiff and that introduced by the defendant against and for the usage. It requires from the court a decision upon its relative weight and credibility, which the court were not justified in giving to the jury in the shape of a positive instruction.

Upon the whole, in our judgment, there is no error in the judgment of the Circuit Court; and it is affirmed, with costs."


[Reported i Whart. 91.] Writ of error to the Court of Common Pleas of Northampton county, to remove the record of an action in which Abraham Arndt was plaintiff, and William White, defendant.

The material facts appeared to be as follows: Jacob Arndt devised to his wife for the term of her life, a brick store, a stone house, and two lots of ground, in the borough of Easton, with remainder in fee to Abrabam Arndt, the plaintiff. The widow afterwards married William A. Lloyd, who, with his wife, demised the premises to William White, for the term of three years, from the 1st day of July, 1829, at the rent of 300 dollars per annum. Mrs. Lloyd, the tenant for life, died about the 25th December, 1829. White, the defendant, continued to occupy the premises, and paid rent quarterly, to the plaintiff, until the 1st of April, 1832. The premises were sold by the plaintiff at public sale, on the 23d of February, 1832.

The present action was originally instituted before a justice of the peace, to recover the sum of seventy-five dollars, being one quarter's rent of the premises due on the 1st of April, 1832. After hearing, the justice rendered judgment for the full amount of the plaintiff's demand. The defendant having appealed to the Court of Common Pleas, the defendant declared in assumpsit; and issue baving been joined on the plea of non assumpsit, the cause came on for trial on the 27th of January, 1835. The plaintiff having proved the occupation of the premises by the defendant, during the term of three months, and the amount paid by him for the preceding quarters, the defendant offered to prove, in substance, that with the knowledge and approbation of Mr. and Mrs. Lloyd, he had erected upon the lot of ground, a frame stable, and two frame shops, and had made other improvements of the property ; that

i See Cannon v. Hare, 1 Tenn. Ch. 22, 36.

it was agreed between them (the said Lloyd and wife, and White) that White was to have the liberty of selling or removing the stable, and that the shops were to be taken by the owners of the lots at a valuation, or if a valuation could not be agreed upon, that he was to have the privilege of removing the materials : That when the premises were put up at public sale, he requested the crier, by a written paper, to give notice of his claim, but the plaintiff's agent refused to permit the notice to be read: That the purchaser took possession of these buildings, with the other parts of the property, and still retains them.

The plaintiff's counsel objected to this evidence, and the court refused to receive it; upon which a bill of exceptions was tendered; and the jury having found for the plaintiff, the record was removed to this court.

The only question argued was the admissibility of the evidence in the court below.

Mr. Brooke, for the plaintiff in error.
Mr. Porter, for the defendant in error.

ROGERS, J. It is a general rule of the common law, that whatever is annexed to the inheritance during the tenancy, becomes so much a part of it, that it cannot be removed by the tenant, although the improvements may have been made at his own expense. As in Warner v. Fleetwood, 4 Rep. 63, glass put in by the tenant, or wainscot fastened by nails, was held part of the inheritance. To this rule there are certain exceptions, nearly as old as the rule itself, as between landlord and tenant, that whatever buildings or other fixtures are erected for the purpose of carrying on trade or manufactures, may be reinoved by the tenant, during the term. The cases upon this subject are collected by Lord Ellenborough, in Elwes v. Muw, 3 East, 38; and by Mr. Justice Story, in Van Ness v. Pacard, 2 Peters' Rep. 145. As to substantial improvements, they are usually made a consideration for ex. tending the term of the lease ; or some collateral agreement is made, so as to allow of some compensation to the tenant. The latter was the course adopted by the parties to this contract. The tenant, White, erected on the premises several improvements, among which was a stable, and two shops, wbich, it is said, greatly enhanced the value. It was agreed at or about the time of the erection of these improvements, between White and Mr. and Mrs. Lloyd, who had an estate for life, that White was to have the liberty of selling or removing the stable, and that the barber's shop, and other small buildings erected by him were to be taken at a valuation ; and that if a valuation should not be agreed on, White was to have the privilege of removing the materials of the shops. As between the parties to this contract, this agreement was a good consideration ; and any violation of it on the part of Lloyd, would have subjected him to a action. And I am inclined to believe, on the authority of Van Ness v. Pacard, that if the estate of Lloyd had continued until the end of the term, White would have had a right to remove the buildings from the premises, without the consent of the owner of the remainder, notwithstanding the general principle, that whatever is annexed to the freehold, becomes part of it, and cannot afterwards be removed, except by him who is entitled to the inheritance. The exception in favor of trade, which is founded on public policy, and intended to encourage manufactures and the improvements of the country, may well apply to this case; for the question does not depend, upon the size or form of the house, or the manner in which it is built; but the only inquiry always is, whether it was intended for purposes of trade or not; and I cannot believe that the nature of the business, whether agricultural or mercantile, can make any difference. But while these principles are conceded, I am unwilling to extend them beyond the duration of the estate which the tenant for life has in the premises, so as to subject the owner of the fee to payment for the buildings, or to compel bim to allow them to be removed. In the case at bar, Lloyd's interest was in right of his wife, who had a life estate. On her death, the interest in possession vested in Arndt, the owner of the remainder in fee.

The death of Mrs. Lloyd put an end to White's lease. Now, there is no principle better established by authority than that, even as between landlord and tenant, fixtures must be removed during the term. After the term they become inseparable from the freehold, and can neither be removed by the tenant, nor recovered by him as personal chattels, by an action of trover, or for goods sold and delivered. 1 Atk. 477, Ex parte Quincy ; 3 Atk. 13, Lawton v. Lawton, and the note ; 2 Peters' R. ; Lord Dudley v. Lord Ward, Ambl. 113; Co. Lit. 53 a ; Brooke, Waste, 104, 142; Cooper's Case, Moore, 177; Day v. Bis, bitch, Cro. E. 374 ; Lord Derby v. Asquith, Hob. 234; 4 Term, Rep, 745 ; 7 Term, Rep. 157.

It has been contended by the counsel for the plaintiff in error, that the tenant for life can bind the remainder-man by contract, so as to com: pel him either to pay for improvements which enhance the value of the property, or to permit them to be removed when it can be done without injury to the inheritance. For this position they rely on Whiting v. Brastovo, 4 Pickering, 310, in which it is ruled, that a tenant for life, years, or at will, may at the determination of his estate remove such erections, &c., as were placed on the premises by himself, the removal of which will not injure the freehold, or put the premises in a worse plight than when he entered. In Whiting v. Brastou, the tenant removed a padlock used for securing a binn house, and movable boards fitted and used for putting up corn in binns. That was a case between landlord and tenant, and not between tenant for life and the remainder-man ; the rule being that, as between the latter, in questions respecting the right to what are ordinarily called fixtures, as between tenant for life or in tail and the remainder-man or reversioner, the law is considered more favorable than between landlord and tenant. It is construed most strictly between the executor and heir, in favor of

« PreviousContinue »