Overman v. . Sasser
12 S.E. 64
N.C.
1890
Check Treatment
Clark, J.:

In the great case of Elwes v. Mawe, 3 East., 38, 2 Smith Ldg. Cases, Lord ElleNBORougji holds the doctrine of fixtures to depend largely in its application upon the relations of the parties, which he divides into three classes.

1. Execütor and heir. As between them, the common law rule, that whatever is affixed to the freehold becomes a part of it and passes with it (quic quid plantatur solo, solo cedii) is observed in full vigor. In this class fall also mortgagor and mortgagee, vendor and vendee, as to whom the strict rule of the common law is still in force. Foote v. Gooch, 96 N. C., 265.

2. Between executor of tenant for life, or in tail, and the remainderman, in which case the right to fixtures.is considered more favorable for the executor.

3. Between landlord and tenant, in which case, in favor of trade, and to encourage industry, the greatest latitude is allowed, so that all fixtures set up for better enjoyment of trade are retained by the tenant, though this does not include fixtures used for agricultural purposes. Where, however, they are used for mixed purposes of trade and agriculture, they are held-to belong to the tenant. Williams on Personal Property, 16, vote, and numerous cases cited.

The reason of the distinction is pointed out by PearsON, C. J., very succinctly in Moore v. Valentine, 77 N. C., 188. When additions are made to the land by the owner, whether vendor, mortgagor or ancestor, the purpose is to enhance its value, and to be permanent. With the tenant the additions are made for a temporary purpose, and not with a view of *436 making them part of the land, hence, for the encouragement of trade, manufacturing, &c., the tenant is allowed to remove what had apparently become affixed to the freehold, if affixed for purposes of trade, and not merely for better enjoyment of the premises. Pemberton v. King, 2 Dev., 376.

In the present case, it is agreed that “the engine, cotton-gin and condenser were attached to the mill by the tenant by the courtesy after his term commenced, and not solely for the better enjoyment of the land and farm, but for the purpose of milling corn and ginning cotton for the neighborhood, as well as himself, and for the mixed purpose of trade and agriculture.”

His Honor properly held that they belonged to the executor of the life tenant as against the remaindermen.. This case comes under the second class mentioned by Lord Ellexborough, and there are few adjudications on that class, but the ruling of the Court below is sustained by that of Lord Hardwicke in Lawton v. Lawton, 3 Atk., 13, and in Dudley v. Wood, Amb., 113, and the observation of Lord Mansfield in Lawton v. Salmon, 1 H. Bl., 260. There are subsequent cases which all seem to follow the above precedents. "Tyler on Fixtures (Ed. 1877), 490, 491, 496, 503.

In our own reports, Pemberton v. King, 2 Dev., 376; Feimster v. Johnson, 64 N. C., 259, and Railroad v. Deal, 90 N. C., 110, which recognized the right of tenant to remove, were cases between tenant and lessor, while Bryan v. Lawrence, 5 Jones, 337; Latham v. Blakely, 70 N. C., 368; Deal v. Palmer, 72 N. C., 582; Bond v. Coke, 71 N. C, 97; Foote v. Gooch, 96 N. C., 265, and Horne v. Smith, 105 N. C., 322, which adjudged the fixtures to have become part of the freehold, all came under Lord Ellenborough’s first class, supra.

This is the first instance in which the rule as to fixtures between executor of tenant for life and the remainderman has come before the Courts of this State. It assimilates that, between landlord and tenant, the principal difference, per *437 haps, being that the executor can remove such fixtures within a reasonable time after the death of the life tenant, whereas, between landlord and tenant, the tenant cannot go on the premises to remove the fixtures after the termination of his lease without being a trespasser, except in those cases where the duration of his term is not fixed, but uncertain, or where there is an agreement that he may remove after the expiration of the lease.

Per Ornara. No error.