Moore v. Smith
24 Ill. 512
Ill.
1860
Check Treatment
Walker, J.

The first question presented is, whether the clause of forfeiture contained in the agreement between Ray and Smith, upon default in payment of the purchase money, converted the possession by the purchaser into a tenancy at will, without any further act of the parties. The agreement contained , a provision, that if Ray should make default in any payment of the purchase money or interest, the contract should be forfeited, and that he and his assigns should be tenants at will, at a rent equal to twenty per cent, on the amount of the purchase money, payable monthly. Ray and his partners failed to make the payment falling due December 31,1858, but it nowhere appears that Smith ever did any act recognizing the occupants as tenants at will. Moore became a purchaser of the premises under his decree, and received a deed in February, 1859, but it does not appear that Smith or Moore were in possession in May, when Todd entered and removed the lead, brass and copper pipes, and other machinery used in the distillery, the sale of which produced the money in controversy.

It is certainly true that Moore succeeded to all the rights of Ray, Todd and McMahon in the premises, by his purchase. If the contract of purchase had not then been forfeited, he acquired the right to complete the payment, and enforce a conveyance. If it had been forfeited, and converted into a tenancy at will, he succeeded to the right to possession of the property, subject to all the terms of the lease. Then did the default in payment by Ray or his assigns operate of itself to convert the agreement for a purchase, by tjie clause of forfeiture, into a tenancy, or did it require some act of Smith to produce that effect ? In the case of Mason v. Caldwell, 5 Gil. 196, this court held, that a clause inserted in a contract for the purchase of real estate, which provided that should the purchaser fail to pay the money within ten days after it , became due, he should forfeit all claim to the lands and money paid thereon, and the contract to be void in law and equity, and the title remain in the vendor as if no sale had been made, was not forfeited by a failure to make the payment. But that it must have been inserted as a penalty, which the vendor might enforce, to insure a prompt performance of the contract by the purchaser, and that the latter could take no advantage of his own failure to make payment. And that the contract was mutually binding on the parties until a forfeiture should be declared by the vendor. This principle was again recognized and applied in the case of Hossack v. Caton, ante, 127. It is decisive of this question. Until Smith did some act to terminate the contract of purchase, and to enforce the penalty, it must be regarded as mutually binding on the parties. He has thus far failed to exercise the right, and until he shall do so, Moore must be regarded as an assignee of Ray and as a purchaser. To have terminated the contract for the purchase and enforced the forfeiture, he should have manifested the intention by some act of his. Chrisman v. Miller, 21 Ill. R. 227. He has no right to insist, that the contract is binding or is forfeited, as he may choose. Until he has manifested a design to terminate the agreement, it is binding on the parties, but when that intention is once manifested, it then ceases to exist, and neither of the parties can insist upon its enforcement.

A purchaser let into possession may remove trade fixtures, placed upon the premises by him, at any time during the continuance of the contract. Such a purchaser, failing to make payment so as to lose the benefit of his purchase, is held to be a tenant from year to year or at will, and therefore entitled to remove fixtures which he may have attached to the freehold while in possession, Raymond v. White, 7 Cow. 321. And this class of fixtures pass by a sale of the property by the owner, unless they are expressly reserved by the conveyance, or belong to the tenant. Hitchman v. Walton, 4 Mees. & Welsb. 409 ; Colgraves v. Dios Santos, 2 B. & C. 76; Steward v. Lombe, 1 B. & B. 507 ; Oves v. Ogilsby, 7 Watts, 106. It then follows that these fixtures passed to Moore by his purchase under the decree, as no reservation was made. And this was so determined in the case of Gray v. Holdship, 17 Serg. & Bawle, 413, which was a sale under a mechanics’ lien. The rule deducible from the adjudged cases seems to be, that the fixtures must be removed during the continuance of the term, or at least before possession is restored to the owner.

But if this view of the case was incorrect, and Bay and his assignees became tenants, by making default in payment of the purchase money, still they as tenants would have a right to remove trade fixtures, at any time during the continuance of the term. Moore being an assignee, and occupying Bay’s position to the purchase, would undoubtedly succeed to this right as well as any other. And until that relation ceased to exist between him and Smith, he had the right to detach the trade fixtures, placed upon the premises by Bay and his partners.

It then remains to ascertain whether the articles removed by Todd fall within that class of things denominated trade fixtures, and which the law authorizes the tenant to remove. The question has undergone much discussion in the courts of Great Britain and this country, but in their decisions there is more harmony than is usually found on such questions. The larger majority of the cases hold, that all erections made for the purposes of trade, during the tenancy, such as soap vats, fire engines to work a colliery, pans used in manufacturing salt, brew-houses, furnaces and coppers, green-houses, hot-houses erected by nurserymen and gardeners, may be removed by the tenant. Pool's Case, Salk. 368; Lawton v. Lawton, 3 Atk. 13 ; Lord Dudley v. Lord Warde, Ambler, 113; Lawton's Ex'rs v. Salmon, 1 H. Blk. 259, in notes ; Miller v. Plumb, 6 Cowen, 665; White v. Arndt, 1 Wharton, 91; Guffield v. Hapgood, 17 Pick. 301; Van Ness v. Packard, 2 Pet. R. 413. In the last of these cases, the Supreme Court held, that a two-story dwelling house, with a brick chimney and foundations, might be removed by a tenant, who had erected it during his term, for the double purpose of being employed as a dwelling and a dairy. From these authorities, we think there can be no doubt, that the articles removed, from the premises in this case, were trade fixtures, that might be removed from the freehold by the tenant, or a purchaser, when placed there by him, if removed before the possession was restored to the owner. These articles having been removed by Todd, one of the assignees of the contract, Moore had the right to affirm the act, and recover the proceeds of their sale, as they passed to him by his purchase. When they were dissevered, they were personal chattels, and Smith had no claim to anything but his real estate, and could consequently assert no right to them, or to the money arising from their sale.

The decree of the court below is reversed, and the cause remanded.

Decree reversed.