iron salt kettles, and certain iron arch pieces, arch fronts and grates, to be put up in said salt works, for the price of $955.60, for which he gave his promissory notes, payable in November, July, and August next after the purchase. He also executed to the defendants a chattel mortgage upon said articles, which recited the sale and that the kettles, &c., were about to be taken from Syracuse to Liverpool, and to be set up in the aforesaid salt block. It was conditioned to be void if Titus should pay the notes at their maturity; otherwise to be an absolute transfer to the defendants. Titus was to remain in possession until default, unless the defendants should consider themselves insecure; in which case they had a right to take possession of the property and apply it to the payment of the debt, and Titus was to pay the deficiency, if any. The mortgage was duly filed in the clerk's office of Onondaga county, and was continued in force by refiling according to the Statute. Titus thereupon set the kettles in arches, upon the salt block, in such manner that they could not be removed, except by tearing off a portion of the upper bricks of the arch, and prying the kettles out by a plank and bars. It was proved to be the general custom to take the kettles from the arch, and to reset them every season before commencing boiling in the spring; and that these kettles had been taken out, reset in the fall of 1856, before the defendants took them, as afterwards mentioned; and that it would have been necessary again to take them out, and reset them the ensuing fall, if the defendants had not taken them.

Titus was the beneficial owner of the lots on which the salt works were erected, in June, 1855, though the legal title was in Horace White, from whom he had an executory contract. He, Titus, had put up the frame of the salt works, and had covered the building; and some time in that month he made a verbal agreement with the plaintiff, to sell him an undivided half of this property, and of other real estate, for $2,000, nearly all of which was paid down. By this agreement, Titus was to put in the kettles, half the cost of which was included in the purchase price, finish the salt block and wall it; and this he accord

ingly did by purchasing and putting in the kettles and otherwise; and he leased the whole to one Soule, who continued to run the salt works down to the time the defendants took the kettles. In October, 1855, Titus procured White, in whom the legal title was, to convey the lot to one T. O. Titus, and the latter, on the 21st March, 1856, by O. W. Titus' procurement, conveyed the same to O. W. Titus and the plaintiff, and in November, 1856, O. W. Titus conveyed his interest to the plaintiff.

On the 10th February, 1857, no part of the notes given for the purchase price of the kettles, except the first note for $200, having been paid, the defendants entered upon the premises, and took and carried away twenty-three of the salt kettles, claiming them by virtue of the mortgage. They did no more damage than was necessary, but they were obliged to remove a part of the upper bricks of the arch, and to pry up the kettles, each of which weighed about 675 pounds, in the manner before mentioned; by which, as the referee found, the property was injured to the amount of $50. The plaintiff was absent from the country, and did not know of the purchase of the kettles when it was made, or of the giving of the chattel mortgage, until the day the kettles were taken by the defendants. The referee held, as matter of law, that the kettles were a part of the realty, and that the plaintiff became the owner of them by his purchase of the land, and he awarded damages to $461.77, for which judgment was entered; and it was affirmed at general term. The defendants appealed. The case was submitted upon printed briefs.

Philo Gridley, for the appellants.

James Noxon, for the respondent.

DENIO, J. The case is to be considered as though O. W. Titus was the owner of the land at the time he purchased the kettles and put them into the arch, and as though the plaintiff subsequently purchased the land from him, and took a conveyance of it without any notice of the defendants' claim to the kettles. This is the precise point of view in which the question has been regarded in the Supreme Court, and in the briefs which have been submitted by the counsel for the respective parties. The plaintiff, it is true, had made a verbal agreement with Titus, anterior to the time when the kettles were set, but the latter was in possession of the land as owner, with the plaintiff's consent, when he purchased and mortgaged the kettles; and it does not appear that the defendants had any knowledge of the verbal arrangement between Titus and the plaintiff.

I shall assume, that if Titus had paid for the kettles when he purchased them, instead of mortgaging them for the purchase price, the manner in which he annexed them to the freehold was such as would have converted them into a parcel of the realty; and that they would have passed to his subsequent grantee of the land, or would have gone to his heirs or devisees if he had died without conveying it. It is very clear that this would have been so at the common law and independently of

the provisions of the Revised Statutes. The case of the salt pans, decided by Lord Mansfield, where it was held that fixtures, very similar in their purpose and mode of annexation with these now in question, belonged to the heirs and not to the executors, has been very generally followed in England and in this country. Lawton v. Salmon, 1 H. Bl. 258, note; and see Murdock v. Gifford, 18 N. Y. 28, and cases cited. There is room for an argument, that the rule thus established has been modified by the provision of the Revised Statutes, which declares that "things annexed to the freehold or to any building for the purpose of trade or manufacture, and not fixed into the wall of a house so as to be essential to its support," shall go to the executor or administrator to be applied as part of the personal property. 2 R. S. 82, § 6, subd. 4. Apparently it was the intention of the Legislature to abolish the distinction, which had become well established, between the rights of a tenant to remove certain kinds of fixtures which he had himself annexed to the freehold of the demised premises, and those of the heirs or devisee. If that is the true construction of this provision, the kettles in question ought to be held to be personal property, and the plaintiff, who makes title only by means of a conveyance of the land, would have no case. But the important and unexpected consequences which it was seen would flow from such an interpretation have caused the courts to hesitate; and in House v. House, 10 Paige, 158, Chancellor Walworth decided that the millstones, bolts and machinery of a flouring mill were parcel of the real estate and descended to the heirs of the owner, holding, as I understand the case, that the rules of the common law upon the distinction referred to, still prevailed; and the present Chief Judge, in giving the opinion of this court in the case of Murdock v. Gifford, 18 N. Y. 28, seemed inclined to adopt the conclusion of the Chancellor. But the point was not necessary to the decision of that case, as the fixtures there in question were held to be personal property, according to the former decisions, in any aspect in which the question might be presented. The reasoning of the Chancellor, in House v. House, is not altogether satisfactory to my mind; but as the judgment in that case may be said to have become a rule of property, it should not be disturbed without the greatest consideration, and certainly not. in a case like the present, which may be satisfactorily disposed of on other grounds.

Assuming then that these kettles would be parcel of the real estate if the owner of the land was the unqualified owner of them when they were put up in the arch, we are to determine as to the effect of the arrangement in this case by which the owner of the land and the owner of the kettles agreed, that notwithstanding their annexation to the freehold in the manner which was contemplated, they should continue to be personal property so far as should be necessary to give effect to the personal mortgage. It will readily be conceded that the ordinary distinction between real estate and chattels exists in the nature of the subject, and cannot in general be changed by the convention of the