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being held in position by braces from the joists of the mill above, and extending to the smutter, holding it firmly in place for use. 66 6th.

The smutter in question, when placed in the mill, was designed for, and used only for buckwheat and rye. 66 7th.

That there was another smutter in the mill, which had, previous to getting the one in question, been used for all purposes for which a smutter was used in the mill.

* 8th. That about the time of obtaining the smutter in question, the arrangement of the mill was changed, and the first smutter so placed in the mill, as not to be available for use in grinding buckwheat and rye, and the smutter in question procured for use in grinding that class of grain.

* 9th. That said smutter was placed in the mill in December, 1877.

“ 10th. That the power of said mill was water, and that for the purpose of operating the smutter in question, a counter-shaft was placed in said mill, running from the main or upright shaft over the smutter and connected therewith by belts, by which the smutter was operated.

- 11th. That to remove the smutter it was not necessary to destroy or injure the mill, that is, the building, farther than to remove in part some spouting, or leaders, in which the grain or flour of the mill was conducted.

“ 12th. That on the 28th day of January, 1879, the sheriff of Fayette county, Iowa, by virtue of a special execution to him directed, sold to Flenniken Brothers the land on which the mill in question is situated, including the mill, machinery and fixtures therein.

“ 13th. That on the 30th day of January, 1880, the sheriff of said county of Fayette made his deed of said premises, mill, machinery and fixtures, to Flenniken Brothers, who took possession thereof by virtue of said deed.

“ 14th. That R. B. Flenniken is the defendant herein, and was a member of Flenniken Brothers, and that he is now the sole owner of the interest of said Flenniken Brothers.

• 15th. That at the time of the sale, January 28th, 1879, the said Flenniken Brothers had no notice that the smutter in question was owned by plaintiff, or Anderson and Stillman.

* 16th. The plaintiff is now owner of whatever interest Anderson and Stillman has owned, or would have in said smutter. By the foregoing, I mean that the interest of Anderson in said smutter is conveyed to the plaintiff.

“ 17th. That when Patterson and Dykens placed the smutter in question in the mill, it was with the intention that it should be removed and returned to Anderson and Stillman.

* 18th. I find the value of the smutter to be $75.

“19th. That when the smutter was loaned, Patterson (Anderson] and Stillman knew that it was to be placed in the mill as a part of the machinery thereof."

As conclusions of law the court found :

“ 1st. That as between other parties and purchasers, at a judicial sale, without notice, the smutter was a part of the realty and passed as such.

“2d. That R. B. Flenniken is the full and unqualified owner of the smutter in question, and entitled to the possession thereof." The amount in controversy not exceeding one hundred dollars, the trial judge duly certified the questions of law upon which it is desirable to have the opinion of this court, all of which may be resolved into the single question, whether under the facts as found by the court, the smutter passed to Flenviken Brothers by virtue of their purchase at the sheriff's sale.

That as between Anderson and Stillman, and Patterson and Dykens, the smutter in question did not become a part of the realty, but was subject to removal, must be admitted. The question involved in this case is as to what character is to be impressed upon the smutter against a purchaser at sheriff's sale, without any notice of the arrangement existing between Anderson and Stillman, and Patterson and Dykens. In Quinby v. Manhattan Cloth & Paper Co., 9 C. E. Green, 260 (264), it is said : “ The true criterion as to fixtures to determine whether they are to be regarded as part of the realty or not, is not whether they may be detached and removed from the premises without injury to the freehold, although that, as is well understood, is oftentimes an important element in deciding the question. It is well established that whether property, which is ordinarily treated as personal, becomes anuexed to and goes with the realty as fixtures, or otherwise must depend upon the particular circumstances of the case.” It appears from the facts as found by the court that the smutter was placed in the mill in the usual manner, and that without it the mill, without change in its arrangement, could not grind buckwheat and rye. It was then, to all appearances, an essential and necessary part of the mill.

In Gray v. Holdship, 17 S. & R. 413, the court say: " From the adjudged cases on this subject, I think we are warranted in saying that everything put into and forming part of a building, or machinery for manufacturing purposes, and essential to the manufactory, is part of the freehold ; the wheels of a mill, the stones and even the bolting cloth, are parts of the mill and of the freehold, and cannot be levied upon as personal property.” In Farrar v. Stackpole, 6 Greenleaf, 154, it was beld that things personal in their nature, but fitted and prepared to be used with real estate, and essential to its beneficial enjoyment, being on the land at the time of its conveyance by deed, pass with the realty, and that, by the conveyance of a saw-mill with the appurtenances, the mill chain, dogs and bars, being in their appropriate places at the time of the conveyance, passed to the grantee. In Farris v. Walker, 1 Bailey (S. C.), 540, it was held that a cotton gin attached to the gears in the gin house, on a cotton plantation, passed by a conveyance of the land. See, also, Union Bank v. Emerson, 15 Mass. 152; Fryat & Campbell v. The Sullivan Co., 5 Hill, 116;

Bringholff v. Munzenmaier, 20 Iowa, 513; Ottumwa Woollen Miu Co. v. Harley, 44 Iowa, 57; Miller v. Plumb, 6 Cowen, 665; Wad. leigh v. Janvrin, 41 N. H. 503; Powell v. Monson & Brimford Man'f'g Co., 3 Mason, 459; Corliss v. McLagin, 29 Me. 115; Trull v. Fuller, 28 Me. 545.

The rule is the same whether the sale is by the owner or by a public officer under the law. Price v. Brayton, 19 Iowa, 309; Farrar v. Chariffetete, 5 Denio, 527.

Without entering upon the hopeless task of citing and reconciling all the decisions upon this very vexed question of fixtures, we are clearly of opinion that under the facts found by the court in this case, the smutter must, as to a purchaser without notice, be regarded as constituting a part of the realty.





(Reported 140 Mass. 416.) Bill in equity, filed February 11, 1884, in the Superior Court, against Otis Walker, Thomas E. Rich, and Paris Rich, alleging that the two last-named defendants, on June 19, 1883, executed a mortgage of certain chattels to the plaintiff; namely, a boiler and steamengine and certain machinery, to secure their promissory note for $1000, payable to the plaintiff or order, on demand ; and that the defendant Walker had possession of the building in which said chattels were, and refused to deliver them to the plaintiff, or to allow bim to take possession of them for the purpose of foreclosing his mortgage.

The prayer of the bill was, that Walker be restrained from preventing the plaintiff from taking possession of said chattels, and from moving, concealing, and disposing of the same ; and for further relief.

The defendant Walker filed an answer, alleging title to the property by virtue of a mortgage, executed to him by the two last-named defendants on June 20, 1881, which conveyed a certain parcel of land with the buildings thereon. The answer also alleged that all the articles mentioned in the bill, except the boiler and engine, were in the building at the time the mortgage to Walker was made ; that the boiler and engine were subsequently placed therein ; and that all of the articles were fixtures.

The case was referred to a master, who found the following facts :

The engine, boiler, and machinery were used in a mill or factory building standing on the land mortgaged to Walker, and were used in carrying on the business of making sashes and blinds. The boiler and engine were cast together, the engine being on top of

· Contra, see Hill v. Sewald, 53 Pa. 271 ; Hendy v. Dinkerhoff, 57 Cal. 3.

the boiler. Their united weight was fifty-six hundred pounds. Two iron legs projected from the rear end of the boiler and stood on timbers. There were also two small projections, one on each side of the boiler near its front end, but the front end rested on bricks, which were built up to form the ash-box and placed around and laid to prevent fire. A shed was built over the engine-house and boiler, the grist-mill building and the sash and blind building constituting one end and side of said shed. There was no doorway into this shed except an opening from the sash and blind mill, and the boiler and engine could not be removed except by removing the shed or by taking off some boards to enlarge the opening into the factory. The shed was built over the boiler and engine to protect them from the weather. The boiler and engine were not fastened to the building, nor to the land, except that the engine was belted to the main shaft, but they were kept in place by their own weight. They were called “ Allen's Portable Boiler and Engine.” I find the boiler, engine, and attachments to be portable, and that they retained the character of chattels.

There were ten or more machines described in the plaintiff's bill, all of which were used in the factory to make sashes and blinds, as follows:

1. A jointing-machine, with circular saw and track : fastened at the bottom by cleats about the legs, which were nailed to the floor ; and the feet of the machine were nailed to the floor.

2. A tongue-groover or matching-machine: wood, fastened with cleats and feet nails, and had not been moved since it was set up.

3. A planing-machine: cast-iron, screwed to the floor with Colt screws: this had not been moved since it was set up.

4. A circular saw and table : wooden frame, fastened by cleats and nails.

5. A heavy machine called a slat-planer : wood, with iron legs made to be bolted down to the floor.

6. A sticker : fastened to the floor by Colt screws, which are turned by a wrench.

7. A cut-off saw and table : wood frame, fastened by cleats and nails to the floor.

8. A slat-machine for tenoning: iron frame, screwed to the floor. 9. Boring-machine: wooden frame, held mainly by cleats.

10. Mortising-machine : iron, fastened by four screws to floor, steadied on top by braces nailed to ceiling.

11. Sand-paper machine : cleats round the bottom, and fastened to the floor above.

The said machinery was all connected with the shafting, directly or indirectly, by pulleys or gearing, and was run by belts. The machines stood over the shafting, which was under the floor and in a position convenient to be run by said shafting. None of the machines was very heavy. They were movable, and were sometimes, though not often, moved. They were adapted to do the work carried on in the mill, but could be used elsewhere in the same business.

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The master found all of said machines to be personal property, and to be included in the plaintiff's mortgage, but not in the defendant Walker's; and all the shafting to be part of the realty, and to beloug to said defendant.

Walker filed the following exceptions to the report:

“In that, upon the findings of fact as to the boiler and engine, the master has erred in his findings of law, that a boiler and engine, placed as this boiler and engine were placed, and resting upon a brick foundation as did this boiler, and used for conveying power to this sash and blind shop, were chattels, instead of real property included in and subject to the defendant's mortgage.

“In that, upon the findings of fact as to the machinery named from paragraphs 1 to 11, fastened to the building in the manner set forth in said report, and used for carrying on the business of manufacturing sashes and blinds in the building upon the land described in the defendant's mortgage, which building was built for that purpose, the master has erred in his finding of law, that such machinery is a chattel, instead of real property included in and subject to the defendant's mortgage."

Pitman, J., overruled the exceptions, and ordered a decree for the plaintiff'; and the defendant Walker appealed to this court.

J. M. Cochran, for the defendant Walker.
A. J. Bartholomeu, for the plaintiff.

Holmes, J. Perhaps it would have saved perplexing questions, if, as between vendor and purchaser, or mortgagor and mortgagee, the rule of the common law had been adhered to more strictly, that whatever is annexed to the freebold by the owner becomes a part of the realty, and will pass by a conveyance of it. Y. B. 21 Hen. VII. 26, pl. 4; Elves v. Maw, 3 East, 38 ; s. c. 2 Smith Lead. Cas. (8th Am. ed.) 191; Fisher v. Dixon, 12 Cl. & Fin. 312, 328, & seq.; Mather v. Fruser, 2 K. & J. 536; Walmsley v. Milne, 7 C. B. (N. S.) 115; Gibson v. Hammersmith Railway, 32 L. J. Ch. 337, 340; Climie v. Wood, L. R. 4 Ex. 328; Holland v. Hodgson, L. R. 7 C. P. 328; Meux v. Jacobs, L. R. 7 H. L. 481, 490. The right of a tenant to sever chattels which he has attached to the realty might be admitted, and yet the property might be regarded as land until severed, as it seems to be in England. The language of Hellavell v. Eastwood, 6 Esch. 295, which looked the other way, has been criticised in the later cases, some of which we have cited.

But the later decisions of this Commonwealth establish that machines may remain chattels for all purposes, even though physically attached to the freehold by the owner, if the mode of attachment indicates that it is merely to steady them for their more convenient use, and not to make them an adjunct of the building or soil. McConnell v. Blood, 123 Mass. 47; Hubbell v. East Cambridge Savings Bank, 132 Mass. 447 ; Maguire v. Park, 140 Mass. 21.

It is more important to respect decisions upon a question of property

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