(4.) Fixtures pass, though not named. Fixtures annexed to the 'freehold will pass to the mortgagee without being named, unless excluded expressly, or by inference, as from the mention of those in a part only of the premises (x); and that although slightly fixed, and for mere convenience (y). There is no difference in this respect between a mortgage in fee and a mortgage of leaseholds (z), or whether the security be a memorandum of deposit of title deeds of freeholds (a), or an equitable mortgage (b), or a deposit of a lease (c), and whether the fixtures are trade fixtures or not (d), or tenant's fixtures (e); and the mortgage was held to attach to the produce of the fixtures after the lease had expired (ƒ); and the mortgagee of a lessee has a right to sever the mortgaged fixtures (g), notwithstanding the surrender of the term (h). A distinction has been drawn between the deposit of a lease and that of an assignment of a lease and fixtures: it has been held that in the latter case, no property passed at law or in equity in the fixtures (i). (5.) Fixtures subsequently annexed, &c. Chattels or fixtures attached to the premises subsequently to the mortgage are included in the mortgage, whether it be in (x) Hare v. Horton, 5 B. & Ad. 715; Longstaff v. Meagoe, 2 A. & E. 167; Hitchman v. Walton, 4 M. & W. 416; Waterfall v. Penistone, 3 Jur. N. S. 18; 6 E. & B. 876; Mather v. Fraser, 2 K. & J. 536; 2 Jur. N. S. 900; Holland v. Hodgson, 7 L. R. C. P. 328. And see Colegrave v. Dios Santos, 2 B. & Cr. 77. (y) Ib.; and Exp. Barclay, 5 De G. M. & G. 413; 1 Jur. N. S. 1145. Not agreeing with the dicta in Trappes v. Harter, 2 Cr. & M. 177, and Hellawell v. Eastwood, 6 Exc. 313. (2) Meux v. Jacobs, 7 L. R. H. L. 481; Mather v. Fraser, sup.; Longstaff v. Meagoe, sup. (a) Exp. Price, 2 M. D. & De G. 518; Exp. Tagart, De G. 531; Longbottom v. Berry, 5 L. R. Q. B. 123; Exp. Heathcoat, Fonb. Bk. R. 42. (b) Exp. Edwards, ib. 208; Exp. Heathcoat, sup. ; Tebb v. Hodge, 5 L. R. C. P. 73; Exp. Cowell, 12 Jur. 411; 17 L. J. Bky. N. S. 16; Williams v. Evans, 23 Beav. 239. (c) Meux v. Jacobs, sup.; Exp. Broadwood, 1 M. D. & D. 631; Exp. King, ib. 119; Williams v. Evans, sup. (d) Longbottom v. Berry, sup. ; Exp. Barclay, sup.; Mather v. Fraser, sup.; Walmsley v. Milne, 7 C. B. N. S. 115; 6 Jur. N. S. 125; 8 W. R. 138; Re Head, 12 ib. 215. (e) Exp. Loyd, 3 D. & C. 765; Exp. (f) Fearenside v. Derham, sup. (h) London and Westminster Loan and Discount Co. v. Drake, 5 Jur. N. S. 1407. (i) Re Trethowan, 5 Ch. D. 559, 566, 567, V. C. Bacon (compromised), and quare. fee (), or of leaseholds (1), and whether by deed or mere deposit of title deeds (1), or in an equitable mortgage (m); and whether of freeholds () or leaseholds (n), and whether tenant's fixtures or not (o); and where the fixtures are put up by the mortgagor and his partner (p); and although the mortgagor is tenant to the mortgagee under an attornment clause (2). of Sale Act. A bill of sale or mortgage of fixtures, which did not include any Before Bills interest in the land, made before the Bills of Sale Act, conferred a title against assignees in bankruptcy (»). Though the mortgagee takes possession of the premises forcibly, and therefore illegally, trover for the fixtures will not lie (s). A memorandum under the hand of A., that he had deposited a lease of a house with, and had assigned the fixtures therein to, B., as a security for a sum paid on his behalf, with a power for B. to enter upon the premises and sell the fixtures, has been held to operate as an absolute assignment of the fixtures by way of mortgage (t). And if the trustees in bankruptcy of a mortgagor who has mortgaged the lease of a house and the fixtures, sell the fixtures separately, they will be answerable for the sum which the fixtures would have fetched if sold with the house (t). Under a power of sale in a mortgage, either together or in parcels, fixtures cannot be sold separately (u). (k) Cullwick v. Swindell, 3 Eq. 249, M. R.; Clinie v. Wood, 3 L. R. Exc. 257; 4 ib. 328; Meux v. Jacobs, sup.; Walmsley v. Milne, sup. ; which are not consistent with Hellawell v. Eastwood, sup.; and Waterfall v. Penistone, sup. (1) Meux v. Jacobs, sup. ; Elliott v. Bishop, 10 Exc. 496; 1 Jur. N. S. 962. (m) Exp. Cotton, 2 M. D. & D. 725; Exp. Reynal, ib. 443; Exp. Price, sup. (n) Meux v. Jacobs, sup. (0) Exp. Reynal, sup.; McCluney v. Lemon, Hayes, 154; Ackroyd v. Mitchell, 3 L. T. N. S. 236, V. C. Wood. (p) Exp. Cotton, sup. ; Exp. Scarth, 1 M. D. & D. 240; Cullwick v. Swindell, sup. (1) Exp. Punnett, 16 Ch. D. 226, C. A. (r) Exp. Spicer, 2 Deac. 335; Whitmore v. Simpson, 23 Beav. 313. But see Exp. Sykes, 18 L. J. Bky. 16; 13 Jur. 486. (s) Longstaff v. Meagoe, sup.; Marshall v. Lloyd, 2 M. & W. 450. (t) Thompson v. Pettitt, 10 Q. B. 101; 16 L. J. Q. B. 162. (u) Exp. Barclay, 9 Ch. 576, explained Exp. Brown, 9 Ch. D. 390, C. A. Injunction r. removal. (6.) Foreclosure or sale. A mortgagee of chattels personal may either foreclose, or have a decree for sale (x). And that, too, though the mortgage include real estate (y). A mortgagee, whether his security be in fee or for a term, may restrain the removal of valuable fixtures (2). Where a mortgagor-lessee becomes bankrupt and his trustee removes the fixtures, the mortgagee may sue the trustee for such removal, notwithstanding a covenant by the lessee to deliver up at the expiration of the term all fixtures belonging or to belong to the premises (a). (x) Kemp v. Westbrook, Belt. Supp. to Ves. S. 141; Dyson v. Morris, 1 Ha. 422; Slade v. Rigg, 3 ib. 35. (y) Dyson v. Morris, sup. (z) Ackroyd v. Mitchell, 3 L. T. N. S. 236, V. C. Wood. (a) Hitchman v. Walton, 4 M. & W. 409. CHAPTER XLIII. 493 1 THE law of reputed ownership has considerable effect upon mortgages by debtors. Prior to B. A. 1869, the doctrine of reputed ownership applied to all bankrupts, and to all choses in action. The law was by that Act confined to traders, and, so far as relates to things in action, to trade debts. 8. 44. By B. A. 1883, s. 44 (iii), it is enacted that all goods and B. A. 1883, chattels, being at the commencement of the bankruptcy in the possession, order, or disposition of the bankrupt, in his trade or business, by the consent and permission of the true owner, under such circumstances that he is the reputed owner thereof, provided that things in Choses in action excepted. Commencement of the bankruptcy, sect. 6 (c). action, other than debts due or growing due to him in the course of his trade or business, shall not be deemed goods and chattels within the meaning of this section. "Business" is a wider term than "trade " (a). The commencement of the bankruptcy is thus defined by the Act. Under the B. A. 1883, no person can be adjudged a bankrupt on any act of bankruptcy committed more than three months before the presentation of the petition for adjudication (b). And the bankruptcy of a debtor, whether the same takes place on the debtor's own petition or upon that of a creditor or creditors, is to be deemed to have relation back to, and to commence at the time of, the act of bankruptcy being committed on which a receiving order is made against him; or, if the bankrupt is proved to have committed more acts of bankruptcy than one, to have relation back to, and to commence at the time of, the first of the acts of bankruptcy proved to have been committed by the bankrupt within three months next preceding the date of the presentation of the bankruptcy petition; but no bankruptcy petition, receiving order, or adjudication shall be rendered invalid by reason of any act of bankruptcy anterior to the debt of the petitioning creditor (c). Goods of third (2.) Decisions on old statutes applicable. Under former bankrupt laws, now repealed, questions arose on the construction of the order and disposition, or reputed ownership, clauses therein, which are decided in the same way under the present enactment. Thus it was questioned whether the act 21 Jac. I. c. 19 was persons. not confined to goods originally the bankrupt's (d). But it was determined (e) that the statute extended to the goods of third persons in the trader's possession to sell as his own, but not to goods confided to him as a mere factor or goldsmith. Mortgages. Another question was, whether conditional sales were within 21 Jac. I. c. 19; but it was adjudged that the words true owner were put in contradistinction to false or seeming owner, and therefore (a) Harris v. Amery, 1 L. R. C. P. 184. (b) S. 6 (c). (c) S. 43. (d) See L'Apostre v. L' Plaisterer, cited 1 P. Wms. 318; 3 ib. 185; 1 Ves. S. 365, 371. (e) Mace v. Cadell, Cowp. 232. And see Copeman v. Gallant, 1 P. Wms. 314; Horn v. Baker, 9 East, 215. |