was not applicable to an assignment of an equitable interest in a chattel real. In this case part of the property is directed to be sold without saying by whom. The sale must be by the heir or executors. Here the same person fills both those characters, and the property must therefore pass through him. It must be converted into money, and none of the legatees could have reached that money except through him; and they could never have had the property in the shape of land, but only as money. Then, the executor being bound to pay the shares in this manner, the fact that, at the time when this security was given, the period for the sale had not arrived is not material. Whenever the property was sold, and the money paid to the executor, he would hold part of it for Charles Lee, or for the person who had obtained an assignment of his share from Charles Lee. Here Miss Lys first gave to the executor notice of the assignment in her favour, and therefore she has priority over all other assigns of Charles Lee's share as to this part of the mortgaged property.

As regards the residuary real estate, there is no direction in the will to sell that. It was devised to the testator's wife for life, and after her death to her children. That would [536] carry the fee-simple, and the children would not be obliged to take their shares from the hands of any third person; and although, by the deed of arrangement, they seem to have treated it as personal estate, it was in their own hands; and therefore there can be no question of notice as to this property, but it must go to the incumbrancers according to the order in time in which they obtained their securities.

[536] MATHER v. FRASER. Feb. 21, 22, 1856.

[S. C. 25 L. J. Ch. 361; 4 W. R. 387. See Cullwick v. Swindell, 1866, L. R. 3 Eq. 256; Boyd v. Shorrock, 1867, L. R. 5 Eq. 78; Climie v. Wood, 1868-69, L. R. 3 Ex. 261; L. R. 4 Ex. 328; Ex parte Astbury, 1869, L. R. 4 Ch. 634; Longbottom v. Berry, 1869, L. R. 5 Q. B. 138. Followed, Holland v. Hodgson, 1872, L. R. 7 C. P. 328. See Begbie v. Fenwick, 1873, L. R. 8 Ch. 1080, n.; Hawtry v. Butlin, 1873, L. R. 8 Q. B. 293; Cross v. Barnes, 1877, 46 L. J. Q. B. 480. Followed, Ex parte Moore and Robinson's Banking Company, 1880, 14 Ch. D. 387; Southport and West Lancashire Banking Company v. Thompson, 1887, 37 Ch. D. 71; In re Yates, 1888, 38 Ch. D. 125. See Gough v. Wood & Company [1894], 1 Q. B. 718; Hobson v. Gorringe [1897], 1 Ch. 190; Reynolds v. Ashby & Son [1904], A. C. 471.]

Mortgage. Fixtures. Trade. Bankruptcy. 17 & 18 Vict. c. 37.

Mortgage by two, described in the deed as copper roller manufacturers, reciting a conveyance to them of land, and mills or factories, in a manufacturing town, as tenants in common in fee, and that they were carrying on business at the said mills or factories as copper roller manufacturers, and in such capacity had lately affixed to or placed upon the land, mills or factories, a steam-engine and boilers, together with a large quantity of mill gear and millwright work, and granting the land, mills or factories, and hereditaments comprised in the recited conveyance, to the use of the Plaintiffs in fee, subject to a proviso for redemption. Held, as between the Plaintiffs and the mortgagor's assignees in bankruptcyFirst, that, assuming it possible to distinguish between the case of machinery placed upon land for the purpose of trade or manufacture as collateral to and independent of the use and enjoyment of the land, and that of machinery placed upon land for the purpose of better and more profitably enjoying the land (as to which quare), the recitals shewed that this was a case of the latter description; and although the means of the proposed use and enjoyment of the land was manufacture or trade, all articles fixed to the freehold, whether by screws, solder or any other permanent means, or by being let into the soil, partook of the nature of the soil, and would have descended to the heir along with and as part of the soil itself. Secondly, that the mere grant of the land, following upon the preceding recitals, was sufficient to pass all articles so fixed, and that a subsequent enumeration of certain of such articles did not rebut the inference that all articles so fixed passed by the mere grant of the land, as forming part of the freehold.

And, semble, that the same result would have attended an assignment of the land had the mortgagors been mere termors.

Examination of the authorities upon this subject, and a dictum in Hellawell v. Eastwood (6 Exch. 313), observed upon. The principle upon which the rule of law, that fixtures pass with the soil, is relaxed in favour of trade, has no application where the parties who affix the machinery are themselves owners in fee of the soil. Thirdly, that the mortgage, although it comprised all fixtures then or thereafter to be placed on the land, and contained a covenant not to remove any of the particulars granted by the mortgage without the permission of the mortgagees, was not an act of bankruptcy, it appearing that the mortgagors had other property, that the mortgage money was actually advanced, and that the transaction was clear of fraud.

Fourthly, that the fixtures passing by the grant of the land, the Act for the Registration of Bills of Sale (17 & 18 Vict. c. 37) could have no application. Fifthly, articles standing merely by their own weight are not "fixtures."

But where part of a machine is a fixture, and another and essential part of it is moveable, the latter also will be held "a fixture."

By an indenture, dated the 23d of August 1854, between John Barton and George Barton, described as "both of the [537] City of Manchester, copper roller manufacturers," of the one part, and the Plaintiff's of the other part, reciting that, by an indenture dated 1850, certain plots of land in Broughton in Lancashire, and the mills or factories, dwelling-houses, erections and buildings then standing thereon, were conveyed and assured to the use of John Barton and George Barton, as tenants in common in fee; and reciting that John Barton and George Barton were carrying on business at the said mills or factories as copper roller manufacturers, and, in such capacity, had lately affixed to or placed upon, in or about the said plots of land, mills or factories, and hereditaments, a steam-engine and boilers, together with a large quantity of mill gear and millwright work-in consideration of the sum of £7000 therein mentioned to have been paid to John Barton and George Barton by the Plaintiffs, John Barton and George Barton granted, released and conveyed unto the Plaintiffs, their heirs and assigns, the said plots of land, mills or factories, dwellinghouses and hereditaments comprised in the indenture of 1850, and then in the occupation of the said John Barton and George Barton; and also all and singular the steam-engine, steam-boilers, mill gear, millwright work and machinery, then or thereafter to be fixed to the said lands, hereditaments and premises, or any of them, or any part thereof, together with all houses, outhouses, edifices, fixtures, buildings, yards, paths, passages, privileges, easements, rights, members and appurtenances to the said plots of land, mills or factories, dwelling-houses, erections and buildings, or any of them, or any part thereof, belonging, or in anywise appertaining, To hold the same to the use of the Plaintiffs, their heirs and assigns, subject to a proviso for redemption on payment of the sum of £7000, with interest at £5 per cent. per annum, on the 23d of February then next. The indenture contained a covenant by the Bartons not to pull down, remove or take away the said mills or factories, dwellinghouses, erections or buildings, steam-engine, boil-[538]-ers, mill gear, millwright work or premises therein before granted, or any of them, or any part or parts thereof, without the permission in writing of the Plaintiffs or the survivor of them, &c., unless in cases where such pulling down, removal or taking away should be to a small extent, and should be rendered necessary by any of the premises being worn out or injured. It also contained a proviso that the Bartons should not be at liberty, without the consent of the Plaintiffs, to repay the £7000, or any part thereof, for seven years from the date of the indenture.

On the 23d of May 1855 the Bartons were adjudicated bankrupts.

The bill was filed against the assignees in bankruptcy, who had advertised for sale all the machinery upon the lands comprised in the mortgage, praying for the usual foreclosure decree, and for an interim injunction, which was granted by an order of the 10th of December 1855.

The Defendants, by their answer, submitted, first, that machinery and other articles connected with the working of the mills, although attached to the freehold,

did not pass by the mortgage. Secondly, that, if such articles did pass, the mortgage was an act of bankruptcy on the part of the Bartons. Thirdly, that, even if otherwise operative, the mortgage, not having been registered under the Act for the Registration of Bills of Sale (17 & 18 Vict. c. 36), was by that Act rendered null and void as regarded all fixtures. And, fourthly, that the Plaintiffs lost their title to such property by leaving it in the order and disposition of the bankrupts.

No discussion of importance arose as to what particular articles fell within the denomination of "fixtures," except in reference to one machine, a description of which will be found at the close of the judgment.

[539] It appeared that, at the date of the mortgage, the Bartons had other property of considerable value at Manchester and elsewhere, which was not comprised in the mortgage; also, that they endeavoured to stipulate for liberty to pay off the mortgage debt within the seven years; but this proposal was not acceded to by the Plaintiffs.

The value of the fixtures in dispute exceeded that of the land comprised in the mortgage.

Mr. Rolt, Q.C., and Mr. De Gex, for the Plaintiffs, now moved for a decree. First, the Plaintiffs are entitled to a declaration that all the articles in question passed by the mortgage of August 1854.

All such articles are annexed to the soil, or form essential parts of machines which are so annexed; and, at the date of the mortgage, the mortgagors were owners not only of the articles in question, but also of the inheritance in fee-simple of the soil. Such fixtures, therefore, whether annexed to the soil for purposes of trade or manufacture, or otherwise, were in the nature of real estate, and passed with the soil to which they were annexed. They would have passed to the heir and not to the executor: Fisher v. Dixon (12 Cl. & F. 312); a fortiori, therefore, would they pass to a purchaser for value. The circumstance that the owner of the fixture is owner also of the fee-simple of the land to which it is affixed is all important. Introduce that element, and the case is removed at once out of reach of the entire class of authorities in which the old rule of law has been relaxed for the encouragement of trade, the principle of that relaxation presupposing a tenant [540] whose trade is to be encouraged, by holding fixtures to be his property, as against the freeholder of the soil to which they are affixed. Here no tenant intervenes, and there is nothing to relax the rule of law which treats fixtures as part of the soil, and as passing with it whether by descent or purchase. The fixtures in question would have passed to the Plaintiffs by a mere grant of the soil: Lawton v. Salmon (1 H. Bla. 259, n.), Colegrave v. Dias Santos (2 B. & C. 76), Gordon v. Falkner (4 T. R. 565), Longstaffe v. Meagoe (2 Ad. & E. 167), Wiltshear v. Cottrell (1 E. & B. 674), Rufford v. Bishopp (5 Russ. 346).

Secondly, this was not an act of bankruptcy, although the fixtures passed: for, first, there was other property to which the mortgagors were entitled at the date of the mortgage, and which the mortgage did not comprise; secondly, the £7000 advanced upon the security of the mortgage was intended to go, and did go, into the business; Baxter v. Pritchard (1 Ad. & E. 456).

Thirdly, the objection on the point of order and disposition is disposed of by Ex parte Barclay (5 De G. M. & G. 403, 411, 412, 415), where the mortgagor was merely tenant for a term of years. Here, as there, the creditors were bound to take notice that the land was or might be mortgaged. If the land was mortgaged the presumption was that all was mortgaged which would pass by a conveyance of the land; therefore that the fixtures were mortgaged: and if the fixtures were mortgaged, the subsequent possession of them by the bankrupt was not a possession of them as goods and chattels, but as part of the land: Lord Cranworth in Ex parte Barclay (Id. 411, 412). This distinguishes the present case from Trappes v. Harter (2 Cr. & Mee. 153), [541] where the mortgage did not, either expressly or by implication, include the fixtures, which remained the property of the bankrupt, and therefore passed to the assignees Lord Cranworth in Ex parte Barclay (5 De G. M. & G. 412).

Fourthly, the objection that the deed was not registered under the Act for the Registration of Bills of Sale (17 & 18 Vict. c. 36) is answered by the same reasoning as that upon the point of order and disposition; for the Act does not apply to V.-C. XIV.-29

fixtures which are not in the order and disposition of the bankrupt. Compare the preamble of the Act with Lord Redesdale's observations in Joy v. Campbell (1 Sch. & Lef. 336). A mortgage of the inheritance, passing the fixtures as part of the inheritance, is not a bill of sale, not a mortgage of a chattel; and, that being so, the Act does not apply.

Mr. Daniel, Q.C., and Mr. Little, for the Defendants.

First, the articles in question did not pass by the deed.

All such articles were things placed upon the soil by the mortgagors, not for the benefit of the inheritance, not as accessaries to the enjoyment of the inheritance, but in the course of their trade, and as accessaries to the carrying on of their trade; as is clear from the deed in which the mortgagors are described at the commencement as copper roller manufacturers, and are recited as having, "in that capacity," placed the articles in question upon the land. All such articles must, therefore, fall within that principle of law which, in favour of trade, treats such articles as personal property. Where a fixed instrument, engine or utensil is an accessary to a matter of a personal nature, it is itself considered personalty: per Lord Ellenborough in Elwes v. Mawe (3 East, 38, 53). Trappes v. Harter (2 Cr. & Mee. 153) shews that where fixtures are capable of be-[542]-ing moved, and have been used for the purpose of trade, they are personalty. And Parke, B., says in Hellawell v. Eastwood (6 Exch. 295, 313), where the machines in question were similar to the present, "The machines would have passed to the executor: per Lord Lyndhurst, C.B., in Trappes v. Harter. They would not have passed by a conveyance or demise of the mill. They never ceased to have the character of moveable chattels." This deed, therefore, did not pass the fixtures as part of the soil.

To hold the contrary would be to introduce a distinction most injurious to persons in trade, viz., that, if a person in trade happens to be a freeholder, his mortgage will carry fixtures on the land even against his assignees, whereas, if he were merely tenant for a term of years, such fixtures would not pass.

But assuming that all fixtures upon this property to be treated as part of the soil, and would be inferred to pass by a mere conveyance of the soil without more, this is not such a conveyance. Here, certain fixtures are expressly enumerated in the clause, "and also all and singular the steam-engine," &c., which rebuts the inference that all fixtures passed by the mere conveyance of the soil: Hare v. Horton (5 B. & Ad. 715); and proves that nothing was intended to pass except such articles as are expressly mentioned, or fixtures ejusdem generis with articles so expressly mentioned; and that construction would exclude everything except machinery in the nature of that mentioned in the previous recitals as having been placed upon the premises by the mortgagors. But,

Secondly, if the Court should be of opinion that the articles in question did pass by the deed, then the deed was an [543] act of bankruptcy on the part of the mortgagors. It will be said that the mortgagors had another place of business at Manchester, but how were they to meet the expense of setting up trade at Manchester? [THE VICE-CHANCELLOR. Might they not do so out of the very £7000 advanced by the mortgagees ?] The deed contains a covenant on the part of the mortgagors not to remove from the premises any article comprised in the deed without the consent of the mortgagees. It was so framed as to bring within its operation not only everything which then existed upon the property, but everything which, during a period of seven years, might be fixed upon the property by the bankrupts. Besides,

Thirdly, upon the Plaintiffs' construction, the deed, not being registered pursuant to the Act 17 & 18 Vict. c. 36, is void. The case is clearly within the purview of the Act as set out in the preamble, and it is equally within the enacting clause. The 1st section extends to " every bill of sale of personal chattels." And the 7th section defines a "bill of sale" to include all assurances of personal chattels as security for any debt; and defines "personal chattels " as including "fixtures;" and with regard to "apparent possession " it provides that "personal chattels" shall be deemed to be in the "apparent possession" of the person making or giving the bill of sale, so long as they shall remain or be in or upon any house, mill, warehouse, building, works, yard, land or other premises occupied by him, or as they shall be used and enjoyed

by him in any place whatsoever, notwithstanding that formal possession thereof may have been taken by or given to any other person.'

[THE VICE-CHANCELLOR. If the Plaintiffs are right in their contention that the fixtures passed by the conveyance of the land without more, then do you contend that the Bills of Sale Act can apply?]

Mr. Little. We submit that it would.

[544] [THE VICE-CHANCELLOR. If fixtures pass by a mortgage in fee of the land to which they are fixed?]

Mr. Little. If that circumstance is held to take a case out of the operation of the Act the intention of the Legislature will be defeated. This case is within the words of the Act as well as the preamble; and it is certainly within its policy. It is impossible for the public to know whether a trader, carrying on trade with fixed capital, exceeding the value of the soil possibly a hundred fold, is owner of the freehold or not, or whether he has mortgaged or not.

[They cited also Hallen v. Runder (I C. M. & R. 266), Elliott v. Bishop (10 Exch. 496), Horn v. Baker (9 East, 222), Joy v. Campbell (1 Sch. & Lef. 336) and Ex parte Sparrow (2 De G. M. & G. 907).]

A reply was not heard.

VICE-CHANCELLOR Sir W. PAGE WOOD. Looking at the whole current of the authorities, it appears to me that, upon the true construction of the deed in question, the fixtures passed by the grant of the land to which they were affixed.

In the description of the persons parties to the deed the mortgagors are described as "of the City of Manchester, copper roller manufacturers," not, as it was construed in the argument for the Defendants, as being the owners of the property qua copper rolling, but as being copper roller manufacturers at Manchester, where, it appears, they had another mill. The deed then recites the purchase by them of certain plots of land in Broughton, with mills or factories [545] and buildings standing thereon; which mills and factories, it also appears, although that is not recited in the deed, were at one time used as silk mills or silk factories; and then it proceeds to recite that they are carrying on business at these mills or factories as copper roller manufacturers, and that, in such capacity, they have lately affixed to, or placed upon, in or about the said plots of land, mills or factories and hereditaments, a steam-engine and boilers, together with a large quantity of mill gear and millwright work. They, therefore, describe themselves as owners of the land, and as turning it to account by converting it into a mill for the manufacture of copper rollers. That, according to deed, was their mode of using and enjoying the land.

Now, assuming it to be possible, which Lord Brougham in Fisher v. Dixon (12 Cl. & F. 312) considered it was not, to distinguish between the case of machinery placed upon land for the purpose of trade or manufacture, as collateral to and independent of the use and enjoyment of the land, and that of machinery placed upon land for the mere purpose of better and more profitably enjoying the land, such a distinction, allowing it the utmost weight, cannot avail the Defendants, inasmuch as it appears by the recitals in the deed that the present case is one of the latter description-that it was with a view to the better and more profitable use and enjoyment of the land that the machinery in question was placed upon it.

In Fisher v. Dixon it is true that a portion of the subject-matter to which the machinery in question was applicable was part of the soil itself, being the iron ore extracted from the very soil on which the machinery was placed. But if I read that case aright, it was with a view to the manufacture of the ore so extracted, and not otherwise to the enjoyment of the soil itself-in other words, it was with a view to purposes of manufacture and trade that the machinery was placed there; because it appears that the de-[546]-ceased was owner of leasehold as well as of freehold property, and was working mines in the former as well as in the latter; and the statement that "a very valuable portion of his property consisted of engines employed in the business he carried on" (12 Cl. & F. 312) seems as applicable to engines employed upon ore raised from the leasehold as to those employed upon ore raised from the freehold. The machinery, therefore, did not work merely the produce of the land on which it was placed. In that case, however, Lord Brougham, in giving the reasons for his vote, says, "If a cider-mill be fixed to the soil, though it is a manufactory, and erected for