If Vаllentine had made a conditional contract of purchase as alleged in his answer, that is, if hе-had annexed a condition, that if upon testing the mine the result was not satisfactory, he should have the right to-abandon the contract, his right to remove the engine and appurtenances would have been beyond any question. But upon the facts he did not annex this condition, and made-an unconditional contract of purchase, i. e., he bound himself absolutely to pay the price, and was to have a deech when he made payment in full.
*191 So the relation of vendor and vendee was establishеd, and the fact that his purpose in buying was to “ mine for gold”' does not effect the question in the slightest degree. He took the mine, as parties do in marriage, “ for better or for worse,” no backing out about it:
Or if he had taken a lease, say for five years, his right to-remove the engine and appurtenances would have been beyond any question.
In both of these cases the nature of the estate proves that-the erection of the fixture was for a temporary purpose, and not for the purpose of making it a part of the freehold. In. such cases the fixture may be severed, and does not in contemplation of law become a part of. the land.
"When a mortgagor who is allоwed to retain possession, or a vendee under a bond for title who is let into possession, makеs improvements and erects fixtures, he does so for the purpose of enhancing the value оf the property, and having made this addition to the land, he is not at liberty to subtract it on the ground that by his own default he is not able to get the title. If such was the law,-a mortgagor in possession or a vendee in possession, who has erected a house, considering himself the absolute owner of the land, when he finds he cannоt comply with the condition, may move the house, or may dig up the trees that he has planted, and lеt the mortgagee and vendor take care of themselves. Such is not the law.
When a tree is plauted, or a house is built, or a steam engine is annexed to the soil and is used as a part of the freehold, it becomes a part of the land and cannot be severed except in special cases. His Honor concurs in this 'doctrine seemingly, but he excepts the case of a vendee who is let ÍDt-o possession and builds a, house or makes other fixtures, on the idea that he is a tenant at will. Jt is true he is like unto a tenant at will ip one particular — he may be turned out of possession at the will of the vendor if he fails to *192 make the payments--but he is not like unto a tenant at will in other particulars ; he owes no fealty as tenant; he is not liable for rent as for use and occupation; and above all, he cannot quit at his own will, but is bound by his contract of purchase and the notes given for the purchase money.
Our question is, does the one particular bring him within the exception made in favor of persons having a temporary estate, or ,do the three particulars exclude him from that ■class of persons ? A bare statement answers the question. The vendee is the pоtential owner of the fee simple, and the ■addition made to the land was with the purpose .to enhance its value, and that it should be permanent. Whérfeas if a tenant for years or at will erects buildings, &с., it is not for the purpose of enhancing the value of the land, for he does not expect tо become the owner, and his erections are for a temporary purpose and not with а view of making them a part of the land. Hence for the encouragement of trade, manufacturing, &c., an exception is made in his favor and he is permitted to remove what had apparеntly become a part of the land.
His Honor also erred in the effect which he allows to the аgreement, by which the engine and its appurtenances were severed and sold. This did not in any way affect the rights of the parties ; otherwise the plaintiff' would not have consented to the severance, nor would his consent have been necessary. It is manifest that the sole purpose was to сonvert the engine and its appurtenances into money to prevent spoliation, and let the money stand in the stead of the engine, &e., as it was when annexed to the land, without affecting the rights.of the parties in one way or another.
The effect, given to this arrangement of the parties made for the sole purpose of preserving the property, so as to make it impair the- rights of thе plaintiff, and put the defendant in a better condition than he would have been in, had the engine, &e., been allowed to femain. in statu quo, or *193 'bad thе plaintiff refused to give his consent to the conver-_sion into money, will strike any one as a sequence by which. "Vallentine gets benefit by a breach of good faith, and by .giving to the agreement an effect beyond what was in the .contemplation of the parties.
I have cited no authority because the principles are clear, .■and His Plonor has ex gratia taken that labor upon himself.
Error. Judgment that plaintiff have the fund and re.•cover his .costs of the defendant Vallentine.
PeR Curiam. Judgment accordingly.