1853. V. COTTRELL. Cottrell (defendant), Henry, George, John, Elizabeth, WILTSHEAR William and Edward Cottrell, respectively, into and upon the said farm, lands, hereditaments and premises, thereby granted, released and conveyed, or intended so to be, &c. To hold the said farm, lands, hereditaments and premises thereinbefore described, and all other the premises thereby granted, released and conveyed, or intended so to be, with their appurtenances, unto the said James Wiltshear and his heirs for ever, to the uses thereinafter declared. No. on plan. The Schedule referred to in the indenture specified: "A freehold estate, comprising a recently erected farm-house, two barns, two cart-sheds, stabling for nine horses, double shed, with walled yard, piggery and poultry house, rick and farm yards, garden and orchard, well stocked with fruit trees, together with 112 A. 2 R. 26 P. of well cultivated arable and pasture land, subdivided into convenient inclosures as follows. Culture A. R. P. Description with ten more items. It was agreed that none of the articles taken away by the defendant were specifically mentioned in the schedule: but it was insisted, for the plaintiff, that they came within some or one of the general terms. In the plan, the place where the granary stood was indicated by a red mark. The defendant had finished carrying off his crops before the end of May 1852, and had made the removal almost immediately after, in the same month. It was admitted that he had done no more injury to the soil, or the erections let into it, than was necessary for 1853. V. COTTRELL. the removal of the articles which were the subject of the action. On the part of the defendant, evidence was WILTSHEAR given to shew that, by the custom of the country, an outgoing tenant had the right to remove such things at the expiration of his tenancy: and it was further contended that he was entitled to do so by the general law of the land. For the plaintiff this was denied: and it was contended, further, that, even if this were so, the language of the conveyance took away the right. A verdict was taken for the plaintiff for 30l., the parties agreeing that the staddles and threshing machine should be estimated at 10%, and the granary at 201.: and leave was reserved to move as after mentioned. In Michaelmas term, 1852, Keating obtained a rule Nisi for entering a verdict for the defendant, or for reducing the amount of damages as the Court should direct. In last term (a), Whateley and Phipson shewed cause. Even as outgoing tenant, the defendant could not have removed any tenant's fixtures except such as he had put up himself; whereas all the articles in question were put up by the original owner of the fee. But, further, all fixtures passed under the deed of 25th March 1852, to which the defendant was party. It is therefore not material, in the case of any article which can be shewn to be a fixture, to consider whether it is such as the defendant, had he been merely an outgoing tenant, would have been entitled to remove. Whatever is inseparably annexed to the freehold passes a fortiori. First: the staddles are built into the land: (a) January 13th 1853. Wightman and Crompton Js. Before Lord Campbell C. J., Coleridge, WILTSHEAR COTTRELL 1853. it seems therefore that they are not even fixtures removeable by an outgoing tenant. Secondly: the threshing machine, being connected by bolts and screws with the posts which are inserted in the soil, might perhaps be removeable by an outgoing tenant. But it is not the less a fixture. Indeed the character of fixture appears to belong emphatically to that which the tenant has a right to remove: Parke B., in Mackintosh v. Trotter (a), explaining a sale of fixtures by an outgoing to an incoming tenant, said: "He sells the right to remove, which is described under the word fixtures.” When chattels are "fixed to the freehold by a tenant, they become part of it, subject to the tenant's right to separate them during the term, and thus reconvert them into goods and chattels;" Hallen v. Runder (b). That which is absolutely irremoveable, as bricks and mortar, is never called a fixture. [Lord Campbell C. J. I do not know that "fixture" is a legal term at all: it is not in Termes de la Ley.] Thirdly, the granary, inasmuch as it rests by mere weight on the wooden frame which rests on the caps, appears to be a chattel, according to the authorities; Rex v. Otley (e), Wansbrough v. Maton (d). But it might nevertheless be a fixture in the sense of that word which seems to be adopted by the deed. At any rate, it passed by the words in the body of the deed, "messuage, or tenement, or farmhouse, with the barns, stables and other appurtenances to the same belonging," and by the description in the schedule, which includes "farm-buildings;" these terms clearly comprehend all agricultural buildings, whether fixed to the soil or not. And, further, the site of the (a) 3 M. § W. 184. 186. (b) 1 C. M. & R. 266. 275. granary is marked on the plan (a). It will be said that (a) It was also urged that the defendant was estopped from denying that the granary passed by the conveyance, by the fact that, at the time of the purchase, he had gone over the land with the plaintiff's agent, and had indicated the granary as part of the property purchased; and Pickard v. Sears (6 A. & E. 469) and Gregg v. Wells (10 A & E. 90.) were referred to. But it was answered that the defendant, at the trial, had offered other evidence of what took place on the occasion, which had been objected to on the part of the plaintiff, and withdrawn: and this point was not further noticed in the argument or judgment. (b) 7 T. R. 9. (d) 2 Wms. Suund. 47 b-47 e. (c) 5 B. & Ald. 826. 1853. WILTSHEAR V. COTTRELL. 1853. WILTSHEAR V. COTTRELL. : were parcel of the inheritance, and had been severed by the wrongful act of the tenant to whom they had been demised and in the judgments these circumstances are relied upon.] The granary here was sold as part of the freehold and the defendant has tortiously removed it, claiming to act as tenant. Keating and H. J. Hodgson, contrà. The language of the deed, when taken altogether, leads to the inference that by "fixtures" are meant, not things removeable, but things which are inseparably part of the inheritance, like the trees and hedges, which are mentioned in the same list. The plan is referred to in the deed, only, as shewing "the site" of the "farm, lands, hereditaments and premises." But, if these articles did pass by the conveyance under the word "fixtures," they have since been severed and cease to be part of the realty; and, according to Gordon v. Harper (a), the proper party to sue for the chattel is the tenant who is entitled to the exclusive enjoyment. The authorities as to the removeability of fixtures in general are collected in Amos and Ferard's Treatise on the Law of Fixtures, Part I. ch. 2. s. 2., and in Mr. Smith's note (b) to Elwes v. Maw (c). The test as to articles being part of the freehold was lately much discussed in Hellawell v. Eastwood (d), where Parke B., in delivering the judgment of the Court, laid down, as one test, "the object and purpose of the annexation, whether it was for the permanent and substantial improvement of the dwelling, in the language of the civil law, perpetui usûs causâ, or in that of (a) 7 T. R. 9. (b) 2 Smith's Lea. C. 114. |