« EelmineJätka »
by his personal representative, as the case may be, and that either during the continuance of his estate, or on its determination.
Thirdly, as between mortgagors and mortgagees, the old common law rule for a long time asserted its predominance ; and even trade fixtures were in general esteemed parcel of the realty, whether expressly mentioned in the mortgage, or not (m). And it is difficult to say, that the old rule is · not still applicable in this particular, although in the. Bills
of Sale Acts, 1878 and 1882, requiring registration of a mortgage of personal chattels, fixtures are undoubtedly treated as being (for the purposes of registration) mere personal chattels (n).
But where, after the mortgage, the mortgagor leases to another, and the lessee erects trade fixtures on the land demised, his (the lessee's) right to remove these fixtures is not lost by reason of the mortgage ; and the mortgagee cannot therefore sell such fixtures as if they were (by force of the old common law rule) comprised in his security (o). Also, in general, chattels bought by the mortgagor, and brought upon and affixed to the mortgaged land subsequently to the mortgage, will not pass to the mortgagee, if the seller reserve his property therein until the price therefor is paid (p); because, in these two particulars, the exigencies of modern business clearly demand a modification of the general law.
Fourthly, as between landlord and tenant, it is held that the latter, though guilty in general of waste if he despoils the freehold, may nevertheless take away during the continuance of his term—though not (unless by permission) after he has quitted the premises (9)—such fixtures as he has himself put up, either for the purposes of trade, or for the ornament or furniture of the premises demised (); and of course, the legal representative of the tenant (including his trustee in bankruptcy) has the like right of removal (s). But this right does not extend to erections of such a nature, that their removal would be of material detriment to the freehold ; for these latter fall under the general rule, and not under the exception, and must consequently be yielded up to the landlord, at the end of the term, as parcel of the inheritance (t). Nor did this right extend, at common law, to things annexed to the realty for purposes merely agricultural ; but by the Landlord and Tenant Act, 1851, s. 3, if a tenant of a farm or lands (with the consent in writing of his landlord), at his own expense, erects any building or machinery, either for agricultural or trade purposes, being under no previous obligation to do so, such erection remains the property of, and is removable by, the tenant, though, in removing it, he is not to injure the premises demised. The landlord may, however, on receiving notice, elect to purchase the fixture, at a value to be ascertained by two referees or their umpire. Also, more recently, by the Agricultural Holdings Act, 1883 (u), re-enacting a similar provision contained in the Agricultural Holdings Act, 1875 (w), it has been enacted, but only as regards the holdings affected by that Act, that where after the commencement of the Act (the 31st day of December, 1883), a tenant affixes to his holding any engine, machinery, fencing, or other fixture, or erects any building for which he is not (under the Act or otherwise) entitled to compensation, and which is not so affixed or erected in pursuance of some obligation in
(m; Climie v. Wood (1868), (l (o) Sanders v. Daris (1885), L. R. 3 Ex. 257 ; 4 Ex. 328 ; 115 Q. B. D. 218. Longbottom v. Berry (1869), L. R. (p) Cumberland Bank v. Mary5 Q. B. 123.
port Iron Co.,  1 Ch. 415. (n) Hobson v. Gorringe,  (9) Leader v. Homewood (1858), 1 Ch., at p. 189; Monti v. Barnes, 5 C. B. (n.s.) 546 ; Re Laries  1 K. B. 205.
(1877), 7 Ch. D. 127.
that behalf, or instead of some fixture or building belonging to the landlord, then such fixture or building shall be the property of, and be removable by, the tenant before, or within a reasonable time after, the termination of the tenancy. But (1) before the removal of the fixture or building, the tenant is to pay all rent, and to satisfy all other his covenants in respect of the holding ; (2) in the removal, he is not to do any avoidable damage to the holding ; (3) immediately after the removal, he is to make good all the damage occasioned to the holding by the removal ; (4) he is not to remove the fixture or building without giving one month's previous notice in writing to the landlord of his intention to remove it ; whereupon (5) at any time before the expiration of the notice, the landlord, by counter-notice in writing given by him to the tenant, may elect to purchase the fixture, and thereupon it is to be left by the tenant, and becomes the property of the landlord, he duly paying therefor the price thereof, as agreed between them, or (failing such agreement) as ascertained by valuation.
Fifthly, with regard to the rights of an execution creditor to seize and sell fixtures under a writ of fieri facias, the rule appears to be, that, upon a fieri facias issued against the tenant for years, who is entitled to remove them, the fixtures may be seized and sold under such writ (y) ; but upon the like writ issued against the tenant of the freehold, they are exempt from the operation of any such process (z). But fixtures are not ordinarily subject to a distress for rent (a) ; at least in cases where they cannot be restored, after removal, in the like plight and condition (6).
(y) Poole's Case (1703), 1 Salk.
(-) Winn v. 5 B. & Ald. 625.
(a) Co. Litt. 47 b. ; Gorton v. Falkner (1792), 4 T. R. 565.
(h) Darby v. Harris (1841), 11 Q. B. 895; Hellawell v. Eastuood (1851), 6 Exch. 295.
3. Shares in public undertakings connected with land.-As we have previously seen, in the chapter on estates held in co-ownership (c), an undivided share in real estate itself, as a rule, follows the nature of the property in which it is held. Upon this principle, shares held in any of the numerous public undertakings, such as mines, canals, and railroads, which are immediately and principally concerned with the acquisition and user of land, ought to be treated as things real. And in fact, when such shares were first introduced, they were so treated. Thus, the shares in the famous New River Company, founded in the reign of James I., have always been regarded as real estate (d); and, in the year 1799, the court declared a share in the undertaking known as the “ Bath Navigation” also to be of that character (e). Moreover, it was on more than one occasion held, that similar interests, even though specially declared by Act of Parliament to be personal estate, were within the operation of the Statutes of Mortmain (1). But, in recent years, there has been a decided tendency to reverse this policy. Thus, by sect. 22 of the ('ompanies Act, 1862, the shares in all companies incorporated under that Act are made personal estate ; and, in the cases to which these Companies Acts do not apply, it is usual to provide, by the documents of incorporation, that the shares in the undertaking shall be regarded as personalty for all purposes. The Mortmain and Charitable Uses Act, 1891, enacts (sect. 3) that the word “ land,” in that and the principal Act of 1888, shall not be deemed to include “ money secured on land or other personal estate arising from or connected with land.” It is probable, therefore, that any shares declared by the authority, direct
or indirect, of an Act of Parliament, to be personal estate, would now be entirely outside the scope of the Mortmain Acts (9).
We now approach the consideration of those things personal which are, for certain purposes, treated by our law as having the character of real estate. And of these the chief examples are: (1) title deeds ; (2) heir-looms, and (3) animals fere natura,
(1.) Title-leeds, including charters, court-rolls, and other evidences of the title to lands, together with the chests in which they are contained, pass together with the inheritance, and go not to the executor (h). And the reason is, because such documents are necessary to the well-being of the inheritance, and so (by the general law) pass with it, and as parcel of the freehold ; and their custody is with the legal freeholder, although he should be only entitled to the lands for his life (ė). But where title-deeds have been deposited by the owner as a security for money lent, they are chattels in the hands of the mortgagee; and his special property in them will pass, on his decease, to his personal representative (k).
2. [Heir-looms are such goods and personal chattels as, by special custom, pass upon death to the heir along with the inheritance, and not to the executor of the last proprietor. The termination, loom, is of Saxon original, in which language it signifies a limb or member ; so that an heir-loom is nothing else but a limb or member of the inheritance. As a general rule, they are such things as cannot be taken away without damaging or dismembering the freehold ; but, under the denomination of heir-looms,
(9) Long before the passing of (1) Bro. Ab. tit. Chattels, 18; this Act, the decisions in Tomlin. Co. Litt. 6 a ; Com. Dig. Biens, son v. Tomlinson and Ware v. B. ; Charters, A.; Wright v. Cumberleye had been overruled by Robotham (1886), 33 Ch. D. 106. Lord CRANWORTH in the case of (i) Alhrool v. Heywood (1863), Eduard v. Hall (1855), 6 H. & C. 745 ; Leathes v. Leathes De G. M. & G. 74.
(1877), 5 Ch. D. 221.
(k) Shep. Touch. 469.