13 App. D.C. 48 | D.C. Cir. | 1898
delivered the opinion of the Court:
There are two questions presented : First, whether the articles claimed by the plaintiff and alleged to have been converted by the defendant as chattels, were or were not fixtures to the realty at the date of the deed of assignment of the leasehold estate of November 3, 1893 ? And, second, if they were fixtures at that time, whether they were npt conveyed by the deed of assignment as part of the realty, beyond the control or operative effect of any mere parol agreement or understanding of the parties to that deed?
1. The question as to what will constitute a fixture, and thus become a part of the realty, though originally a mere chattel, is often a question difficult to decide, and especially in view of the great diversity of decisions upon the subject. All well considered cases, however, agree that there are certain conditions that must be shown to exist, in order to constitute a fixture that will pass by a conveyance of the realty, as against the party making the conveyance ; that, in cases as between vendor and vendee, or assignor and assignee of leasehold, it must appear, (1), that there is an actual annexation, according to the nature and use of the article, in its annexed position; (2), that the article was adapted to the use for which it was annexed; and, (3), that the article was fixed or erected with the intention that it should be a permanent accession to the realtju These essential constituents show that the question as to what is a fixture is a mixed question of law and fact. The intention of the owner at the time in attaching the chattel article to the realty must be considered, and if it appears that he attached the property with a view that it should remain in the position where placed permanently, it must be treated as part of the realty, and will pass as part of the realty in any subsequent conveyance or assignment of the owner’s interest therein. This intention must be inferred, to a large extent,
The deed of the 3d of November, 1893, from the plaintiff to the defendant, for the leasehold premises, conveys and assigns to the latter all the premises, “and every part and parcel thereof, with the appurtenances, and also all the estate, right, title, interest, etc., in and to the same,” without any exception or reservation whatever, in respect to the fixtures in the storeroom, or the articles claimed to have been converted by the defendant.
The parties to this deed bear the relation of vendor and vendee, or assignor and assignee, of the leasehold estate, and the articles alleged to have been converted by the defendant, being at the date of the deed affixed to the building and forming a part of the realty, the deed embraced and conveyed the fixtures as effectually as any other part of the premises. This principle is laid down in many well-considered cases, as in the ease of Noble v. Bosworth, supra, and
In the case of Bond v. Coke, 71 N. Car. 97, the principle is clearly stated by the court thus:
“ The deed, in this case, containing no exception of the gin and press, the legal effect of it is to pass them to the defendant, and no parol evidence to the contrary is admissible. The exception of them at the sale (as then alleged) being an agreement touching the sale of an interest in land» the statute of frauds requires it to be in writing. And even if the agreement reserving the gin and press had been in writing, it could only be set up by a bill in equity to reform the deed, on the ground of accident or mistake in the draughtsman.” And further on it is said : “Personal chattels which have become fixtures are incorporated in and are a part of the land, as much so as a house or tree, until an actual severance; and therefore a deed conveying the land, without excepting therein the fixtures, has the legal effect of passing the gin and press, which are part and parcel of the land.” •
The same principle is fully laid down and applied in the subsequent case of Horne v. Smith, 105 N. Car. 322.
The cases upon this subject are fully collected and classified, and the results of them stated, by the American editors, in their note to the leading case of Elwes v. Mawe, 2 Sm. L. Cas. 99—the note commencing at page 215 (4th Am. Ed.).
But apart from the application of the statute of frauds, and the operation of the deed of November 3,1893, the evidence offered by the plaintiff to- show an agreement or understanding in respect to the articles alleged to have been converted by the defendant, would seem, as set out in the bill of exception, to have been wholly insufficient upon which to found a contract, or an agreement of any sort, to except the fixtures from the operation of the sale and conveyance of the leasehold premises. That the plaintiff had, prior to the
Upon the whole, we think the court was clearly right, upon the evidence before it, in directing a verdict for the defendant.
The judgment is affirmed.