McLaughlin v. Nash , 96 Mass. 136 ( 1867 )

Gray, J.

The articles which the defendant contends were fixtures, annexed to the freehold, and therefore not to be accounted for as personal property of the partnership, were put by the plaintiff into a building erected by Gerry, the owner of the land, of which the plaintiff was in possession under a bond from Gerry to convey it to him upon the payment of a price therein stipulated. The plaintiff had not the same right to remove fixtures annexed by him to the land so occupied by him, without paying rent to the owner, under a contract for its purchase, as an ordinary tenant would have against his landlord, Hutchins v. Shaw, 6 Cush. 58. Murphy v. Marland, 8 Cush, 578. King v. Johnson, 7 Gray, 239. His rights in this respect were no greater than those of a vendor or mortgagor against his vendee or mortgagee. A mortgage passes even trade fixtures, annexed to the freehold by the mortgagor, for the more convenient use and improvement of the premises, whether before or after the mortgage. Winslow v. Merchants’ Ins. Co. 4 Met 306. Butler v. Page, 7 Met. 42. Walmsley v. Milne, 7 C. B. (N. S.) 115. In ascertaining what are fixtures, regard is to be had to the object, the effect, and the mode of annexation.

The trip-hammer, firmly attached to a block set in the ground, the blower of the forge, the force-pump and its pipes for raising water on the premises, and the shafting fastened to the building by screws and bolts, having been annexed by the plaintiff to the freehold, and specially adapted to be used in connection therewith, became part of it, and could not be severed again without the consent of the owner of the land. Winslow v. Merchants’ Ins. Co., above cited. Richardson v. Copeland, 6 Gray, 536. The Queen v. Lee, Law Rep. 1 Q. B. 241.

But, under the ck.mmstances stated in the master’s report, the engine and boiler, which are expressly found to have been “ portable &nd in their own frames,” the planing machine, and tf\e anvi's, all of » hieh simply rested on the floor or ground. without being fastened to the land; together with the forge tools and bench tools, the stock of iron and steel, the vices merely affixed by screws to the work-bench; the grindstone in a movable frame, and the emery machine, both of inconsiderable size, more connected in use with the engine and boiler which were not fixtures than with any of the articles which were, and capable of removal without displacing or materially injuring any part of the building or land, and of being used elsewhere as well as on the premises; never lost the character of chattels, and must be accounted for as assets of the partnership. Gale v. Ward, 14 Mass. 352. Winslow v. Merchants’ Ins. Co. 4 Met. 315. Park v. Baker, 7 Allen, 78. Horn v. Baker, 9 East, 215. Hellawell v. Eastwood, 6 Exch. 312, 313. Cresson v. Stout, 17 Johns. 116. Murdock v. Gifford, 18 N. Y. 28.

The report of the master is to be recommitted to re-state the account in conformity with this opinion, unless the parties agree. Order accordingly.