Again, a tenant's lease sometimes contains an express Chap. V. s. 1. demise of fixtures; as in leases of collieries, breweries, Demise of mills, &c., which are let together with the machinery, premises with things affixed. plant, and fixed utensils (g). In these cases the tenant is not at liberty to sever the articles, and use them as personal chattels during the term; for immediately upon the severance, the property vests in the landlord, and the tenant by his wrongful act forfeits all future interest in it. The tenant, it is to be observed, has not the dominion of the property demised, but only a qualified right to use it during the term in a particular way, viz., as annexed to the freehold (h). Although, if it is tortiously severed, he may indeed maintain an action against the wrong-doer; as will be seen hereafter in the second part of the work (i). Parker, C. B., in Ryall v. Rolle, 1 Atk. at p. 175. If, after a grant of fixtures, the grantee should take a lease of the land itself, it might perhaps be contended that the fixtures become re-annexed to the land by the second grant, and that the only interest which the grantee takes is that which is derived under the lease. See 2 And. 51; Owen, 49. (g) The value and importance of the fixtures in collieries and other like works, has given rise to very special terms in the leases of property of that description. Of these, see several instances in Storer v. Hunter, 3 B. & C. 368; Horn v. Baker, 9 East, 215; Duck v. Braddyll, 1 M'Clel. 217. For precedents in leases of this description, see 2 Prideaux's Prec. pp. 93, 96, 104, 117 (12th ed.). U 2 (h) Farrant v. Thompson, 5 nature of a tenant's interest (i) Post, pp. 367, 380. Part I. Lastly, if, at the time of making a demise, nothing is Demise where said respecting the fixed articles belonging to the premises, no mention of the tenant will be entitled to the use of them during the fixtures. term as part of the demise; and the landlord cannot afterwards remove them, neither can he insist upon their being valued, or that any additional consideration shall be paid for them. Thus, where a party accepted a demise of a house containing fixtures and took possession, and there was no proof of any agreement that he should pay for the fixtures, it was held that the acceptance of the demise and taking to the fixtures did not raise an implied contract to pay for them (k). (k) Goff v. Harris, 5 M. & G. 573. And see the same case, as to the effect of paying money into Court as an admission of a liability in respect of the fixtures; see, however, on this point, R. S. C., 1883, Ord. XXII., rr. 1, 6. SECTION II. Of the Transfer of Fixtures by Mortgage. WITH respect to the transfer of fixtures by way of mort- Chap. V. s. 2. gage, it is to be observed, in the first place, that this species Things affixed of property may be mortgaged, as it may be sold, either in pass by a connection with or in separation from the realty. It was the land. mortgage of long since established that in the case of a conveyance of land by way of mortgage, as well as in that of a conveyance of any other description, all things annexed so as to become fixtures pass with the mortgaged premises and constitute a part of the mortgagee's security, and that this is so although the deed contains no mention of fixtures. The result of the authorities is that the maxim quicquid plantatur solo solo cedit applies in all its integrity to the relation of mortgagor and mortgagee (1). The case of Longstaff v. Longstaff v. Meagoe. Meagoe (m) may be cited as an express authority in favour of this rule. The action was in trover for certain counters, presses, grates, coppers, workboards, cupboards, glazed doors, moveable partitions, &c. The lessee of a house (1) Ex parte Cowell, 12 Jur. 411; S. C. 17 L. J., Bkcy. 16; Ex parte Barclay, In re Gawan, 5 D., M. & G. 403; Mather v. Fraser, 2 K. & J. 536; Boyd v. Shorrock, L. R., 5 Eq. 72; Climie v. Wood, L. R., 3 Ex. 257, 262, S. C. in Ex. Ch., L. R., 4 Ex. 328; Longbottom v. Berry, L. R., 5 Q. B. 123; Holland v. Hodgson, L. R., 7 C. P. 328, 333; Meux v. Jacobs, L. R., 7 H. L. 481; Cross v. Barnes, 46 L. J., Q. B. D. 479; Ex parte Punnett, 16 Ch. D. 226. An opinion to the contrary, expressed by (m) 2 A. & E. 167. Part I. So things constructively annexed. Fixtures pass, containing these fixtures executed an assignment of the premises by way of mortgage, not mentioning the fixtures; and afterwards he assigned the premises and all his estate and effects to trustees. The trustees being in treaty for a sale of the fixtures to a third party, the mortgagee, whose principal and interest were due, took forcible possession of the house, and refused on demand to deliver up the fixtures; whereupon the trustees brought an action of trover. It was held that they were not entitled to recover the fixtures, as against the claim of the mortgagee. So in the case of Climie v. Wood (n) it was held that a mortgage of a piece of land included a steam engine and boiler standing upon and annexed to it. And the same rule holds in respect of chattels which are constructively annexed. Thus by a mortgage of a mill, the stones, tackling and implements necessary for the working of the mill pass to the mortgagee (o). And so by a mortgage of land and machines, articles which are essential parts of the machines will pass though unattached; and even duplicates of such articles may be included in the mortgagee's security (p). On the other hand, machines will not pass by a mortgage of the soil or a building, where, although they are placed in prepared receptacles, there is no annexation (q). The above rule clearly applies whether the mortgagor perty freehold be a freeholder (r) or a leaseholder, and a mortgage of a whether pro or leasehold. (n) L. R., 4 Ex. 328. (p) Ex parte Astbury, L. R., (q) Hutchinson v. Kay, 23 Beav. 413; Ex parte Astbury, L. R., 4 Ch. 630, 638; and see ante, p. 5. (r) That a mortgage of copyholds carries fixtures, see Ex parte Reynal, 2 M., D. & D. 443. In that case the mortgage was by a covenant to surrender, and the surren lease carries with it the fixtures on the demised premises (s); Chap. V. §. 2. for so long as the term subsists they have, as we have seen, between no existence apart from the soil or building to which they are annexed (t). But as regards the extent of the interest Distinction which the mortgagee takes in the fixtures, a distinction mortgage by exists between a mortgage by way of assignment of a lease, assignment and by underand a mortgage by way of underlease. In the case of an lease. assignment, the whole of the mortgagor's interest in the premises passes to the mortgagee, and, therefore, he is entitled to all the mortgagor's rights in respect of the fixtures, including, of course, the right of severance of tenant's fixtures (u). But in the case of a mortgage by underlease, the mortgagee is entitled only to the use of the fixtures for the term, and the right to sever them still remains in the mortgagor unless there is a clear intention, to be gathered from the terms of the mortgage deed, to convey the absolute interest in the fixtures, as well as the limited interest in the land (x). nexed after Moreover, as regards the general rule, there is no dis- Things pass, tinction in respect of fixtures which are annexed by the though anmortgagor subsequent to the mortgage. For the security the mortgage; extends alike to all, and the mortgagee is entitled to every thing he finds affixed to the mortgaged premises (y). der having been made, but there having been no admittance of the mortgagee, Mr. Commissioner Holroyd held that this amounted to an equitable mortgage. (s) Ex parte Barclay, In re Gawan, 5 D., M. & G. 403; Longstaff v. Meagoe, 2 A. & E. 167; Boyd v. Shorrock, L. R., 5 Eq. 72; Ex parte Astbury, L. R.. 4 Ch. 630, 637; Meux v. Jacobs, L. R., 7 H. L. 481; Irish Civil Service, &c. Society v. Mahony, Ir. R., 10 C. L. 363. (t) Ante, p. 27. (u) See Meux v. Jacobs, L. R., 7 H. L. at p. 491, per Lord Hatherley. (x) Hawtry v. Butlin, L. R., 8 Q. B. at pp. 293, 295; Ex parte Daglish, L. R., 8 Ch. 1072; Ex parte Barclay, In re Joyce, L. R., 9 Ch. 576; In re Eslick, Ex parte Alexander, 4 Ch. D. 503. (y) Walmsley v. Milne, 7 C. B., N. S. 115, 138; dcroyd v. Mitchell, 3 L. T. 236; Cull |