Part I. Decisions at variance with rule considered. Executor's fixtures, whether they also pass. the articles in question would descend to the heir; so also if it had been devised; and the law was considered to be the same in the case of a purchase. It is, however, proper to mention, that there are two cases which appear to be in some degree at variance with the principles laid down in the decisions alluded to. For in the case of Ex parte Quincy (d), Lord Hardwicke seems to have been of opinion, that the fixed utensils of a brewhouse would not pass by a conveyance of the brewhouse with the appurtenances. And in another case, Beck v. Rebow (e), it was held, that a covenant to settle a house and all things fixed to the freehold of the house, did not comprise certain matters of ornament which at the time of the deed were affixed to the house, and united to it by screws and nails. But of the former of these cases, it may be observed that it was never finally determined (ƒ). And with respect to the case of Beck v. Rebow, it is particularly to be remarked, that the property in dispute appears to have been of a description similar to that which in other cases has been held removable as between heir and executor. It may therefore be thought, perhaps, that without infringing the rule in ordinary cases, the Court considered that articles of this description, which are so much in the nature of personalty as to be assets in the hands of the executor, might be an exception to the general rule, and ought not in strictness to be comprehended under the general terms of a conveyance (g). It is observable that the distinction here suggested seems to derive support from some expressions of the Court in the case of Colegrave v. Dias Santos, above cited. The principle, however, has not been recognized in any other determina (d) 1 Atk. 477. (e) 1 P. Wms. 94. See re marks on this case, post, p. 293 in notis. (9) See ante, pp. 243, 248. tion; and, on the contrary, it appears from the whole Chap. V. s. 1. current of authorities referred to in the course of this work, that things fixed to the freehold are, in all cases, to be deemed essential parts of the freehold, while they subsist in a state of annexation, notwithstanding they may be subject to a right of being afterwards severed from the freehold, and converted into personal chattels (h). Thus, in Gibson v. Hammersmith Railway Co. (i), it was argued Gibson v. that a railway company compulsorily purchasing land on which was a manufactory were not bound to take fixed machinery in the manufactory, because such machinery would have been removable by a tenant as trade fixtures, and was therefore not to be considered as part of the manufactory. Kindersley, V.-C., however, held that the company must take the machinery as well as the building in which it was fixed, for that both were equally a part of the land and therefore passed with it. Hammersmith The doctrine under consideration applies equally whether Fixtures pass, the interest of the vendor in the land be freehold or lease- whether property freehold hold; for an assignment of all a leaseholder's interest in or leasehold. the property itself, as distinguished from the fixtures, carries with it also the interest in the fixtures attached to the property (j). Moreover, a similar rule obtains with respect to personal So where chattels which are incident to the freehold; these also will things constructively pass by a grant of the freehold itself, although at the time annexed. of the grant they are actually severed from it. And, therefore, by a conveyance or lease of a house, the doors, windows, locks, keys, and rings of the house will pass, (h) See ante, Chap. I. p. 28. (i) 32 L. J., Ch. 337; see also Thresher v. East London Waterworks Co., 2 B. & C. 608; and ante, p. 156 et seq. (j) Meux v. Jacobs, L. R., 7 H. L. 481, 491; Er parte Part I. Provisions of Act, 1881. although they may be distinct things; because they are constructively annexed to the house. So, by a grant of a mill, the mill-stone passes, notwithstanding at the time of the conveyance it is severed from the mill and removed for a temporary purpose; for it still remains, in contemplation of law, parcel of the mill (/). And, in connection with this, it may be remarked that even a chattel, such as a granary resting on staddles by its own weight only, may pass without special mention, if from the rest of the conveyance an intention that it should pass is apparent (7). With respect to conveyances made on or after the 1st of Conveyancing January, 1882, it has now been expressly provided by the Conveyancing and Law of Property Act, 1881 (m), that a conveyance of land (n) shall be deemed to include, and shall by virtue of the Act operate to convey with the land all buildings, erections, fixtures, &c., appertaining or reputed to appertain to the land or any part thereof, or at the time of conveyance demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land or any part thereof. The Act further provides (k) Walmsley v. Milne, 7 C. B., N. S. 115, 138; Mather v. Fraser, 2 K. & J. at pp. 550, 551; Metrop. Counties, &c. Society v. Brown, 26 Beav. 454, 459; and see Shep. Touch. 90; Liford's case, 11 Co. at p. 50 b; R. v. Wheeler, 6 Mod. 187; Went. Off. Executors, p. 150; Martyr v. Bradley, 9 Bing. 24; Fisher v. Dixon, 12 Cl. & F. 312, 330; and see ante, p. 20. As to detached pipes and conduits passing by a grant of a house, see Nicholas v. Chamberlain, Cro. Jac. 121; Archer v. Bennett, 1 Lev. 131; Gennings v. Lake, Cro. 168. (1) Wiltshear v. Cottrell, 1 E. & B. 674, 691. (m) 44 & 45 Vict. c. 41 (amended by 45 & 46 Vict. c. 39), s. 6. This section only applies so far as a contrary intention is not expressed in the conveyance. Ib. (n) Conveyance, unless a contrary intention appears, includes assignment, appointment, lease, settlement, and other assurance, and covenant to surrender, made by deed, on a sale, mortgage, demise, or settlement of any property, or on any other dealing with or for any property. Sect. 1. that a conveyance of land, having houses or other buildings Chap. V. s. 1. thereon, shall in like manner be deemed to include and operate to convey, with the land, houses, or other buildings, all outhouses, erections, fixtures, cellars, areas, courts, courtyards, &c. It may, therefore, be accepted as a general proposition that by a conveyance of a freehold, or assignment of a leasehold interest in land, all things annexed to the soil will pass with it as parcel thereof. And it appears from the observations of the Court in the case of Thresher v. East London Waterworks Co. (o), that the circumstances must be very special which would prevent the operation of this general principle (p). contrary On the other hand, notwithstanding there may be Fixtures do general words in a conveyance, &c., which would include not pass if fixtures, yet if it can be collected from the deed itself that intention. these words are qualified by other stipulations found in the deed, so as to make it appear that the intention of the parties was restrictive of the general terms employed, in such a case the primâ facie inference arising from the general expressions is modified and controlled. The case of Hare v. Horton (q) affords an example of such a qualification of the general rule. In that case a party, in a conveyance by way of mortgage, conveyed an iron-foundry, dwelling-houses, &c., with the appurtenances; together with all grates, boilers, bells, and other fixtures in the said dwelling-houses; and all trees, houses, &c., to the said (0) 2 B. & C. 608. (p) As to the effect of collateral circumstances dehors the instrument, see Colegrave v. Dias Santos (2 B. & C. 76), in respect of there being no stipulation for the appraisement of fixed articles on the sale of a house. So, Ex parte Quincy (1 Atk. at p. 478), in respect 160. (q) 5 B. & Ad. 715. Part I. Property in things annexed by purchaser of land, when purchase not completed. foundry, messuages and lands appertaining. There were in the foundry certain cranes and presses, a steam engine, and other fixtures used for the purposes of the business carried on there, and valued at 6007. It was held that the specification of the grates and fixtures in the dwelling-house. excluded the articles in the foundry, and showed that the latter were not intended to pass; though it was admitted that they would have passed under the general terms in the granting part of the deed, if the others had not been mentioned (). But unless there be some particularity in the other stipulations in the deed-as, from the limitation of the articles specified to one particular genus-general words in a deed will not be so restricted (s). Before leaving this part of our subject it may be useful to refer to the American case of The Hinkley and Egery Iron Co. v. Black (t), with reference to the property in fixtures annexed to land by a person during his possession under an uncompleted agreement for purchase of the land. There the defendant agreed to sell and convey certain land to one H., who was to have immediate possession, the purchase-money being payable in instalments. H. went into possession and erected large and substantial buildings and machinery for the purpose of a manufactory, and subsequently made a personal mortgage of them to the plaintiffs. H. having made default in payment of the instalments, and having become bankrupt before he was entitled to a conveyance, the defendant re-entered on the land and took (r) See, too, Bishopv.Elliott, 24 L. J., Ex. 229. (s) See Mather v. Fraser, 2 et seq. such a manner that they could not be removed without injury to it, a purchaser of the realty, without notice, was entitled to hold the chattels affixed as against the lender, who must look to the hirer for compensation. Fryatt v. The Sullivan Co., 5 Hill's N. Y. Rep. 116; 7 id. 529. |