4 E.D. Smith 273 | New York Court of Common Pleas | 1855
By the Court.
Dr. Ware, being the owner of a house and lot, put in it a furnace, which was so connected with the house that, in order to remove it, it would be necessary to take down brick work adjoining to it, and would, probably, cause the ceiling to fall; and, in the opinion of some of the witnesses, the flue to the second story might also fall down.
After the furnace was put in, the property was sold, at a sheriff’s sale, to the defendant, whether under execution or foreclosure does not appear; but I infer under a foreclosure, because the sale was the 19th of August, 1854, and the defendant was in possession at the time of suit. The principal question is, whether the furnace is a fixture, or whether it can be removed after sale of the property and delivery of possession.
A distinction exists in the application of the rule as to fixtures, when the question arises between landlord and tenant, and when it arises between grantor and grantee. In the former case, the stringency of the rule, that whatever is an
But when the question arises between grantor and grantee, the rule is more strictly enforced; and all things which are necessary to the full and free enjoyment of the freehold, and are in any way attached to it, are held to be fixtures, and pass with it.
A grantor, who sold and conveyed a house and lot in this city, with grates, ranges and furnaces in it at the time of sale, would never be allowed to remove them from the premises after the sale, upon the ground that their removal would not produce any injury to the freehold. But, as between landlord and tenant, a tenant who, during his term, placed such things on the premises, for his own use, might, under the more modern doctrine, be allowed to treat such articles still as personal property, and might, before his term expired, remove such articles, which, under other circumstances, would be adjudged to be fixtures.
In the case of Colgrove v. Dias Saretes, 2 Barn. & Cress. 76, stoves, grates, ranges and other articles were adjudged to be fixtures. That was a case between grantor and grantee. The same rule, I apprehend, must be applied to a sale under a mortgage as under a direct conveyance of the grantor. The same relation exists, and the conveyance under a mortgage sale is but a conveyance under the authority of the mortgagor. In fact, the case last cited has been held to establish the proper rule as between the mortgagor and mortgagee. (Langstaff v. Meoque, 2 Adolph. & Ellis, 167.)
I think the furnace in this case, as between Dr. Ware and the purchaser, must be considered as a fixture, passing by the sale to the defendant, and one which the former owner of the land had no right to dispose of as personal property, after the sale to the defendant. In this state it can hardly be said, on a review of the cases, that the courts are disposed to
A full examination of the cases affecting this question may be found in the opinion of the late Justice Coweet, in the case of Walker v. Sherman, 20 Wend. p. 636. (See, also, Buckley v. Buckley, 11 Barb. S. C. Rep. 43.)
There may also be doubt as to the proof of conversion. The demand was made by the plaintiff. No authority to take possession seems to have been presented, and no refusal to deliver is shown. The answer was, “ that he might have it if it was hisand this certainly called for some proof of the plaintiff’s title before he could rely on such an answer as evidence of a conversion.
Judgment reversed.
