89 Ky. 36 | Ky. Ct. App. | 1889
delivered the opinion of the court.
About April 1, 1887, the appellant, Thomas C. Hill, sold and conveyed to the appellee, Lizzie Gr. Mundy, the “Exchange Hotel,” in the town of Owenton. There was an ice-house upon the premises, which, at the time, was nearly full of ice. Nothing was said between the parties during the negotiation of the trade, nor in the deed, nor when possession was given to the vendee, as to the ice. There was no reservation by the vendor of any right to enter upon the premises and use or remove it. Soon after the purchase the appellee locked the ice-house, and the appellant, being refused the right to enter and use the ice, brought this action, in form replevin, for it.
It is contended upon the side of the vendor that it was merely a chattel, or a sort of emblement, and did not pass by the conveyance. This is denied by the vendee, who asserts that it was a fixture.
Much research and learning have been expended in endeavoring to establish fixed rules by which to determine whether or not a thing is a fixture. The ancient
Kent says: “The character of the property, whether personal or real, in respect to fixtures, is governed very much by the intention of the owner and ,the purposes to which the erection was to be apiolied.” (2 Kent, side page, 343.)
As between vendor and vendee, the law leans to the latter (1 Parsons on Contracts, p. 431), and he may be entitled to an article as a fixture, although it is not permanently annexed to the realty. We do not, of course, mean that annexation to the freehold is not to be regarded when it exists, but it is only one of several tests to be applied, according to the existing circumstances.
If it be evident that the article would not have been placed upon the freehold except with the expectation and intention that it should be enjoyed in connection with the right to the enjoyment of the realty, then it may be regarded as constructively annexed to it, and
Turning from this general notice of the law of fixtures to the case in hand, we find that the property sold was a hotel, for the use of which ice is- almost, if not quite, indispensable. The sale was made when summer was at hand, and when a removal of the ice would have resulted in great waste, if not its total loss. The vendor of the property made no reservation of it, or of any right to enter upon the property to use and enjoy it, or to attend to its preservation, if necessary.
Under these circumstances, it is not only reasonable '.to conclude that it was stored there, to be enjoyed and used by those who might have the right to use and ■enjoy the freehold, and was, therefore, a part of it by the intention as to its use and enjoyment, but that the parties to the sale expected and understood, at the time of the purchase, that it would pass with the premises .and by the conveyance.
We must presume against the vendor; and, as it ■could not well be removed from the ice-house at that .season of the year, save by the small, and as used, he certainly would have reserved the right to enter upon the premises and take it away, if he had then so expected or intended. At least, fairness to the vendee required him to make the reservation. The purchaser, owing to the nature of the article, and all the other circum
The action of the lower court conformed to this view* and the judgment is affirmed.