parties. Thus, it would not be competent for parties to create a personal chattel interest in a part of the separate bricks, beams or other materials of which the walls of a house were composed. Rights by way of license might be created in such a subject, but it could not be made alienable as chattels, or subjected to the general rules by which the succession of that species of property is regulated. But it is otherwise with things which, being originally personal in their nature, are attached to the realty in such a manner that they may be detached without being destroyed or materially injured, and without the destruction of, or material injury to the things real with which they are connected; though their connection with the land or other real estate is such that in the absence of an agreement or of any special relation between the parties in interest, they would be a part of the real estate. The cases respecting trade fixtures put up by a tenant sufficiently exemplify this distinction. Thus, in the case of the salt pans, which Lord Mansfield held belonged to the heirs, no doubt was entertained by him but that they might lawfully have been detached and taken away if they had been put in by a tenant. "It would have been a different question," he said, "if the springs had been let and the tenant had been at the expense of erecting these salt works; he might very well have said, I leave the estate no worse than I found it." All the cases upon this branch of the law of fixtures proceed upon the idea that erections which would clearly be a part of the realty under ordinary circumstances, are personal chattels as regards the rights of a tenant who has put them up for the purpose of trade or manufacture. Penton v. Robart, 2 East, 88; Elwes v. Maw, 3 Id. 38; Buckland v. Butterfield, 2 Brod. & Bing. 55; Holmes v. Tremper, 20 John. 29; Miller v. Plumb, 6 Cow. 665. If a subject which would otherwise be real estate can be made personal by the creation of special relations between the parties, it is clear that the same parties may effect the same thing by express agreement. Accordingly, it has been repeatedly held that erections which, by the general rules of law, would belong to the freehold, have become chattels in consequence of a contract to that effect between the owner of the land and the party claiming the erections as personalty. In Smith v. Benson, 1 Hill, 176, a building used as a grocery and dwelling-house had been erected under an agreement with the proprietor of the soil that it might be removed at any time. One who claimed title under the party who erected it, but who had no interest in the land, mortgaged it as a chattel, and afterwards sold it as personal property. The question was between the mortgagee and the subsequent purchaser, and the former was allowed to recover in trover against the latter, who had converted the house. In answer to the objection that the building was real estate and therefore not the subject of such an action, Judge Cowen said that prima facie such a building would be a fixture and would not be removable; that the legal effect of putting it on another's land would be to make it a part of the freehold. "But the parties concerned," he added, “ may control the legal effect of

any transaction between them by an express agreement." So in Mott v. Palmer, 1 Comst. 564, the defendant had sold and conveyed to the plaintiff by deed containing a covenant of seisin, a farm, certain of the fences standing upon which had been put up by a third person under an agreement with the defendant that he might take them off at his pleasure. This third party had recovered the value of the fences of the plaintiff, who had refused to let him take them off, in an action of trover, upon which the plaintiff sued the defendant, his grantor, for a breach of the covenant, and was permitted to recover the value of the fences. The recovery could be sustained only on the assumption that fences were prima facie parcel of the freehold, but might legally become personal property by force of such an agreement as was proved in the case. And in Godard v. Gould, in the present Supreme Court (14) Barb. 662), the plaintiffs had sold certain paper-making machinery, to be put up in a paper-mill, reserving, however, by express agreement, the title to the machinery as a security for the purchase money. It was accordingly put up, and afterwards the owner of the mill sold and conveyed it to the defendants, who had no notice of the plaintiffs' rights. The deed, besides describing the land on which the mill stood, purported also to convey all the machinery in it. The action was for the conversion of the machinery by the defendants; and a recovery in favor of the plaintiffs was sustained by the court. It was considered that the machinery was personal property, by force of the arrangement under which it was placed in the mill, though its mode of annexation and adaptation to the purposes of the mill were such that it would have passed by a simple conveyance of the real estate but for the agreement by which the plaintiffs retained the right of property in it. Many other cases to the same effect will be found referred to in "Hilliard on Real Property," ch. 1, §§ 18-28.

It is conceded that there must necessarily be a limitation to this doctrine, which will exclude from its influence cases where the subject or mode of annexation is such that the attributes of personal property cannot be predicated of the thing in controversy. Thus, a house or other building, which from its size or the materials of which it was constructed, or the manner in which it was fixed to the land, could not be removed without practically destroying it, would not, I conceive, become a mere chattel, by means of any agreement which could be made concerning it. So of the separate materials of a building, and things fixed into the wall, so as to be essential to its support; it is impossible that they should by any arrangement between the owners become chattels. The case of Fryatt v. The Sullivan Co., 5 Hill, 116, was correctly decided upon this distinction. A certain steam-engine and boiler were leased, and the lessees took them to their smelting works, and affixed them so firmly to the freehold that they could not be removed without destroying the building in which they were placed. The defendants made title to the building, under a mortgage executed after the engine had been thus annexed, and the owner of the engine and

boilers brought trover for them. It was held, that the articles had been converted into real estate, and that the remedy of the plaintiff was against the party who wrongfully converted them from personal into real property; and that the action could not be sustained against the owners of the real estate.

The question in the present case, therefore, is, whether the method in which these salt kettles were affixed to the freehold was such that they can still be claimed as chattels, upon the principle of the first mentioned cases, or whether they are to be considered as real property ,within the one last referred to. There is no pretence that they were necessary to the support of the building, or that their own condition was essentially changed, or their value diminished, by being detached from the arch. They were of value after being removed, as secondhand kettles, and could be again put up in another arch; but taking them out involved the displacement of certain of the bricks of which the arch was composed. I do not think this a controlling circumstance, especially as it is found by the referee, that they required to be taken out and re-set as often as once a year, in the ordinary course of the business of manufacturing salt. This involved a certain amount of expense, whether it was done for the purpose of re-setting, or with a view of finally disconnecting them with the arch. I do not think that it required any such destruction of the subject, or serious damage to the freehold to which they were attached, as to render void the arrangement by which it was agreed that they should continue to be personal property, for the purpose of removal, in case default should be made in the payment of the purchase money. They were not so absorbed or merged in the realty, that their identity as personal chattels was lost; and unless such an effect has been produced, there is no reason in law or justice for refusing to give effect to the agreement, by which they were to retain their original character.

I conclude, therefore, that the defendants were entitled, as against O. W. Titus, to detach the kettles from the arch and take them away, after default had been made in the payment of the purchase price; and the only remaining question is, whether the plaintiff is in any better position than that which Titus occupied. The kettles were originally personal property. The agreement contained in the chattel mortgage preserved their character as personalty, which would otherwise have been lost by their annexation. They, therefore, continued to be personal chattels notwithstanding the annexation; and the plaintiff, by filing the mortgage, observed all the formalities required by law to preserve their lien upon that kind of property. The title to the kettles did not, therefore, pass by the conveyances to the plaintiff. Those conveyances embraced only the interests which the grantors had a right to dispose of, including any advantage which would accrue to the grantee by the laches of the former owners, in giving the constructive notice which the law required to be given; but I do not see that any such laches occurred. This seems to me the true state of the case upon

principle. But it is also sustained by authority. The case of Mott v. Palmer, already referred to, necessarily involved this point. It was held, that the covenant of seisin was broken at the time of the execution of the deed, because the fences which were embraced in the general description of the property professed to be conveyed, did not pass by it; and the reason they did not pass was, that they had been saved from merging in the freehold by an agreement in character precisely like the one set up by the present defendants. If it could have been maintained that they passed by the deed, because they were apparently parcel of the realty, and because the grantee had no notice of the special arrangement, no recovery for a breach of the covenant of seisin could possibly have been sustained. This decision, pronounced by our predecessors in this court, is of the highest authority with us, and is decisive of the point. There is a case equally in point, in the Supreme Court of New Hampshire [Maine]. The action was trover for a saw-mill, mill chain and dogs. The defendant made title under a deed of the land on which the mill stood; and the evidence showed that he had no notice of the special facts upon which they were claimed to be personal property. Those facts were, that the defendant's grantee, the owner of the land, was a party to an arrangement by which that mill had been sold to the plaintiff as personal property. It was decided that the action was maintainable, and the plaintiff had judgment. Russell v. Richards, 1 Fairf. 429. The case of Godard v. Gould, before referred to from the reports of the present Supreme Court of this State, is to the same effect.

These considerations lead to a reversal of the judgment of the Supreme Court in the present case, and to the award of a new trial.

JOHNSON, C. J., STRONG, ALLEN, GRAY, and GROVER, JJ., concurred; COMSTOCK, J., dissented.

Judgment reversed, and new trial ordered.1

CLARY v. OWEN.

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1860.

[Reported 15 Gray, 522.]

ACTION of tort by the assignee in insolvency of Heman D. Burghardt, for the conversion of four water-wheels, with the shafts, couplings, and other machinery connected with them. At the trial in the Superior Court the plaintiff introduced evidence of the following facts:

In 1854 Burghardt contracted with John E. Potter, who then owned certain real estate in Barrington, to furnish the water wheels and machin

1 See Tifft v. Horton, 53 N. Y. 377.

ery, and to set them up in wheel-pits to be prepared by Potter on the premises, for the sum of $3,500, of which $500 was paid at once, and the balance was to be paid on the completion of the work, in notes secured by a mortgage of the property, or by a mechanic's lien.

In the latter part of 1854, Burghardt, in pursuance of this contract, constructed the wheels in question, which were made of cast iron and placed in pairs upon cast-iron shafts, and set them up in penstocks and a flume, the frame of which rested on a stone foundation built by Potter in all respects like the foundation of a building. The wheels were intended for the purpose of driving a paper-mill on the premises; they were outside of the paper-mill building, but the mill could not be used without them.

In January, 1855, before the completion of the wheels and fixtures, the mill was destroyed by fire; Potter failed, and abandoned the work; and Burghardt never fulfilled his contract and never received any payment or security, except the $500 paid at the time of making the contract; never delivered the wheels, except in so far as setting them up as above described amounted to a delivery; never offered to return the money which he had received, and never called on Potter for any payment.

When the contract was made the premises were subject to certain mortgages, which were afterwards assigned to the defendants, who had previously had notice that Burghardt claimed to own the wheels and machinery, and who, a year after the fire, took possession of the premises, which were in the condition in which the fire had left them, to foreclose the mortgages, and afterwards purchased the equity of redemption.

Upon this evidence, Putnam, J., ruled that the wheels having been placed on the premises after the execution of the mortgages, the action could not be maintained. The plaintiff then offered to show that, by the agreement between Burghardt and Potter, the wheels were to remain the property of the former until completed, and payment for them secured by mortgage; but the judge ruled that, even if that were proved, the plaintiff could not maintain his action, and directed a verdict for the defendants, which was returned, and the plaintiff alleged exceptions.

J. D. Colt, for the plaintiffs..

J. E. Field and M. Wilcox, for the defendants.

HOAR, J. It is conceded in the argument of the plaintiff's counsel, that the mill-wheels, for the value of which this action was brought, must be considered, as between mortgagor and mortgagee, fixtures belonging to the realty. They were essential to the operation of the mill, and were intended, when completed and paid for, to be permanently attached to the land. If the mortgagor had himself annexed them to the freehold, there could be no doubt that the mortgagee would hold them under his mortgage, and that they could not be severed without his consent. Winslow v. Merchants' Ins. Co., 4 Met. 306.