Hill v. Wentworth.

ent.

in that town. If those declarations had been made by him, during his residence there, perhaps they might have been competent evidence, as they might be considered part of the res gestae, explaining the character of his residence, whether temporary or permanBut when such declarations are not cotemporaneous with the fact to be proved, we know of no principle that will admit them as evidence in the case. Baptiste v. Vourburn, 5 Har. & John. 86. 1 Greenl. Ev. § 108. Gorham v. Canton, 5 Greenl. 266. The actual residence of those persons in Reading, between the years 1779 and 1787, cannot be proved by reputation or family tradition for the purpose of creating a legal settlement. Testimony of that character has been received to show the relationship of individuals, the pedigree of families, and in some other cases where it is the interest of the family to preserve a knowledge of the facts to be proved; 1 Greenl. Ev. § 111; Ward v. Oxford, 8 Pick. 477; but we do not find that it has ever been extended to cases of this character. The admission of that testimony cannot be urged on the ground that it was competent in proof of the identity of the parties, as the exceptions state that the testimony was offered and received to prove the residence of those persons in Reading, and for that purpose alone they were admitted by the court. We think the testimony for that purpose ought not to have been received.

The result is that the judgment of the county court is reversed and the case remanded:

JABEZ HILL v. ASA WENTWORTH, Jr.

Fixtures.

Not only the manner and extent, but the object and purpose of the annexation of a chattel to a building, is to be considered in determining whether it has become a fixture and part of the realty.

That the article is essential to the use of the building for the business for which it is used, is not the test by which to determine whether or not it is a part of the realty.

Hill v. Wentworth.

To change the character of an article from a chattel to a fixture there should be some positive act and intent to that effect, on the part of the person annexing it to a building; and, if the intent is left in doubt upon an inspection of the property itself, taking into consideration its nature, the mode, extent, purpose and object of its annexation, it should be held to remain personal property.

Articles of machinery used in a manufactory do not become a part of the freehold when they are only attached to the building for the purpose of keeping them steadier, and in a manner best adapted to that purpose, so that their use as chattels may be more beneficial, and are attached in such a way that they may be removed without injury to the freehold or to the articles themselves as chattels.

An iron boiler, in a paper-mill, set in brick-work which was laid on a stone foundation placed in the ground up to which the floor was laid, together with the iron pipe connected with it by screws and bolts; engines for grinding rags, fixed in tubs standing on timbers up to which the floors of the building were scribed;-paper presses fastened to the building by cleats and with screws and nuts; calendar rolls in an iron frame screwed to timbers which were spiked to the floor;-a rag-cutter; -a trimming-press set in a frame which was screwed to the floor, and a machine for making paper, which was fastened to the floor by cleats nailed around it and in no other way, held to be no part of the real estate, as between mortgagor and mortgagee;-but otherwise of the iron shafting put up in the building by hangers of iron bolted to the beams and sills, and used for turning and carrying the machinery.

TROVER for a quantity of iron. Plea, the general issue; trial by jury, April Term, 1855,-UNDERWOOD, J., presiding.

The plaintiff, to support the issue on his part, put into the case two mortgage deeds from James I. Cutler, Henry Green and Alexander Fleming, to the plaintiff, of certain lands therein described, and among the rest of a paper-mill; also a decree of foreclosure of said mortgages in September, 1846, in which the time of redemption was limited to the 7th of October, 1847.

One of the mortgage deeds above referred to, and upon which the decree was founded, contained among other things, in the description of the estate mortgaged, the following: "also the papermill, dry-house and size-house, situated at Bellows Falls, now used and improved for making paper, together with the land on which said paper-mill, dry-house and size-house are situated."

The plaintiff's evidence tended to show that sometime after the execution of said mortgages, the paper-mill building was taken down and another building substituted in the same place, and fitted up for manufacturing paper, with fixtures and machinery, and occupied by the mortgagors for manufacturing paper as before. The plaintiff's evidence further tended to show that an iron boiler was fitted up in said building, near the centre, in brick-work laid on a

Hill v. Wentworth.

stone foundation placed on the ground, and that the floor of the building was laid up to it, but was attached to the building in no other manner; that four engines for grinding rags into pulp, fixed in large oval tubs, in the usual way, were fitted up in the building, the tubs standing on timbers, and the floor of the building scribed up to them, which were attached to the building in no other way, saving that they were carried and operated by a band from shafting hereafter named, which carried the machinery: and that there were five paper presses with screws of iron, the lower ends of which dropped through the floor to the ground, and were in no other way attached to the floor, and their upper ends surrounded by cleats nailed to the floor over head, to keep them in place, which, by taking off some iron nuts, could be taken out without injuring or disturbing the building; four calender rolls, placed in an upright iron frame, the frame standing on timbers spiked to the floor, and the toes of the frame screwed to the timbers; a rag-cutter put into a wooden frame, which stood on the floor, and was in no other way confined; a trimming press, set in a frame about the size of a four-foot table and screwed to the floor; a machine for making paper, which stood upon the floor, and was in no way fastened to the building, except by cleats nailed round it to the floor; iron pipes connected with the boiler by screws and bolts, which could be easily taken off, and iron shafting put up in the building for turning and carrying the machinery, by hangers of iron bolted to the beams and sills, which could be taken down by unscrewing the bolts.

The testimony further tended to show that these fixtures and machinery were composed of iron in various conditions, (in part,) such as screws, hoops, rollers, gudgeons, spikes, &c., &c., and were put up by said mortgagors, and were necessary and usual for manufacturing paper in paper-mills, and designed to be used there permanently for manufacturing paper, except as they might be repaired as occasion required; and that on the 13th of July, 1846, and before the plaintiff had taken possession of the premises, said paper-mill, fixtures and machinery were consumed by fire, leaving all the irons of said fixtures, machinery and the building, scattered about in the ruins, in which situation, it appeared, the iron was collected and deposited in a building by direction of the mortgagors,

Hill v. Wentworth.

and the defendant, who was their creditor, caused them to be attached on a writ against said mortgagors, and to be sold on his execution, except a portion which he sold at private sale, by consent of the mortgagors; and this iron so sold was the same contained and named in the declaration. There was no evidence to show the plaintiff had any other title to said property, than by virtue of said mortgages. The sale was made before the time of redemption in said decree had expired, and before the plaintiff took possession of the premises.

The defendant requested the court to charge the jury that said machinery and fixtures were personal property, and did not pass by the deeds, and that, therefore, the plaintiff was not entitled to recover for any portion of the iron composing them. The court refused to charge as requested, but did charge, substantially, that such of said machinery and fixtures detailed in the testimony as were placed and used there by the mortgagors, and designed to be and remain there permanently, being necessary and usual for manufacturing paper, and were in any way fixed to the building, whether by nails, screws, spikes or cleats, or were made to stand upon the ground or timbers with the floor built up to them, and within the main building, were to be regarded a part and parcel of the paper-mill and of the realty, and would pass by virtue of said mortgages; and that, whatever of the iron sued for, the jury should find composed said fixtures or machinery detailed in the testimony, in whole or in part, for that the plaintiff should recover. Exceptions by the defendant.

H. E. Stoughton for the defendant.

To constitute fixtures, it is requisite that the articles be actually affixed or annexed to the realty, and so firmly that they cannot be removed without actual injury to the freehold by the removal, apart from the abstraction of the thing removed; and whether personal property or fixtures must be determinable by inspection of the property itself, considering the use, nature and intention of the party annexing it. Fawn v. Stackpole, 6 Greenl. 154; Teafft v. Hewett, (Ohio Sup. Court,) reported in Law Reg. for 1853; Swift v. Thompson, 9 Conn. 63; Gale v. Ward, 14 Mass. 352; Cresson v. Stout, 17 Johns. 116; Walker v. Sherman, 20 Wend. 636; Far

Hill v. Wentworth.

rer v. Chauffute, 5 Denio 527; Taffe v. Warwick, 3 Blackf. 111; Line v. Billamy, 12 N. H. 205; Tobias v. Francis, 3 Vt. 425; Sturgis v. Warren, 11 Vt. 433.

D. & G. B. Kellogg for the plaintiff.

The conveyance of a "paper-mill, dry-house and size-house,” conveys that which is necessary to the carrying on of the papermaking business. Steam engines, boilers, bands, gearing, stoves set in brick, &c., pass with the freehold; Winslow v. Insurance Co., 4 Met. 306; 6 Greenl. 155; Nolle v. Bosworth, 19 Pick. 314; 15 Mass. 159; 7 Mass. 432.

There is a wide distinction between landlord and tenant and mortgagor and mortgagee, which is well defined in 4 Met. 306.

A mortgage will embrace all fixtures, unless, by its terms, it was the intention of the parties not to embrace them. 15 Mass. 159; 2 B. & C. 76.

The opinion of the court was delivered by

BENNETT, J. This is a case of very considerable practical importance, and we have endeavored to give it the attention which its importance demands. The charge assumes that, if the machinery in the mill was necessary and usual for the purpose of manufacturing paper, and designed to be and remain in the mill permanently, it became a part of the realty, however slightly it may have been attached to the freehold. There are, no doubt, cases in the books, which will fully warrant the charge of the court, and of that character is the case of Farrar v. Stackpole, 6 Greenleaf 157, to which we have been referred, (and which seems to be an extreme case,) while others take an opposite view, and hold that the annexation must be substantial, and such that the chattel cannot be severed without substantial injury to the freehold, beyond what shall result from an abstraction of the thing removed. The first inquiry should be, what has been the tendency of our own decisions in relation to the matter?

In Wetherby v. Foster, 5 Vt. 136, it was held that potash kettles, set in brick arches, in the usual manner, with chimneys to the arches, and used for manufacturing purposes, still remained personal property. The court said, p. 142, if the kettles were fastened