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290. Fixtures.

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FOLLETT, CH. J. In determining as between mortgagor and mort. gagee whether articles are or are not fixtures, the same rules prevail which are applicable to cases arising between grantors and grantees. Snedecker v. Warring, 12 N. Y. 170; Gardner v. Finley, 19 Barb. 317; Laflin v. Griffiths, 35 id. 58; Robinson v. Preswick, 3 Edw. Ch. 246; Main v. Schwarzwaelder, 4 E. D. Smith, 273; 1 Dart V. and P. (6th ed) 607; 1 Jones Mort., § 428. And as between mortgagor and mortgagee the same rules are applicable to articles placed on the mortgaged premises by the mortgagor after the execution of the mortgage. Gardner v. Finley, 19 Barb. 317: Rice v. Dewey, 54 id. 455, 472; Sullivan v. Toole, 26 Hun, 203; Walmsley v. Milne, 7 C. B. (N. S.) 115, 135; Winslow v. Merchants' Ins. Co., 4 Met. 306; Ex parte Belcher, 4 D. & C. 703; Ex parte Reynal, 2 M. D. & De Gex, 443 Jones Mortg., § 436; 1 Sug. Vendors (7th Am. ed.) 37, note 1; Phænix Mills v. Miller, 4 N. Y. S. R. 787. In the case last cited the rule was well stated, as follows: A mortgagee of real property is entitled to have his lien respected as to all that was realty when he accepted the security; also as to all accession to the realty, save, perhaps, when the accession is made under an agree ment with the party that its purchase price or expense shall be secured and is secured by a lien thereon."

The same rules apply to articles annexed to the premises by a subsequent grantee or vendee in possession under an executory contract to purchase. Eastman v. Foster, 8 Met. 19; Lynde v. Rowe, 12 Allen, 100; Glidden v. Bennett, 43 N. H. 306; Cooper v. Adams, 6 Cush. 87; Ogden v. Stock, 34 Ill. 522; Poor v. Oakman, 104 Mass. 309, 318; 1 Wash. R. P., page 2, par. 4.

Bearing these general rules in mind, it remains to apply them to the particular facts involved in the case at bar, which briefly are as follows: Jeremiah McFadden was the owner in fee of eighteen acres of land, upon which was a mill-pond, saw-mill, dwelling and barn. December 11, 1878, he mortgaged the property to Orson Wallace to secure the payment of $400 five years thereafter, with semi-annual interest, which mortgage was duly recorded September 2, 1879. The plaintiff, a son of Jeremiah McFadden, occupied the premises from December, 1879, until May 21, 1887, when he was ejected by a writ of assistance issued in and in pursuance of a sale made by virtue of a judgment foreclosing said mortgage.

The plaintiff testified that it was orally agreed between himself and his father that the former should take possession of the property, have the use of it, and when he had paid the mortgage he was to have a deed. The son was to make such improvements as he chose, with the right of removing them if he failed to pay the mortgage and acquire the property. Under this contract the son occupied the property for nearly eight years, and added to it some new buildings and machinery. Under this contract the plaintiff hecame the equitable owner of eighteen acres, and on paying the mortgage could have compelled a conveyance of the legal title by his father. Freeman v. Freeman, 43 N. Y. 34. The plaintiff could have devised the land, and, had he died intestate, his interest held under this oral contract would have descended to his heirs subject to the dower right of his widow. Cogswell v. Cogswell, 2 Edw. Ch. 231, 239; Griffith v. Beecher, 10 Barb. 432; Warren v. Fenn, 28 id. 333; Dayton's Surrogate (3d ed.) 630. While in possession of the eighteen acres under this arrangement with the father, the plaintiff and his father, with their wives, executed a mortgage on the eighteen acres and another parcel of thirty-seven acres June 16, 1885, to secure $634.26 to Frances L. and Anna M. Harrison, who were made defendants in the action to foreclose the first mortgage, and they became the purchasers at the sale and afterward conveyed to the defendant. It is not asserted that Wallace, the first mortgagee, or the Misses Harrison had notice actual or constructive, of the alleged contract between the father and the son. The son, by the execution of the mortgage, treated the eighteen acres as his own, and the buildings and the machinery as a part of it, and he cannot now be permitted to assert as against the Misses Harrison or the defendant, their grantee, that the buildings and machinery were not fixtures.

The plaintiff, his wife, Jeremiah McFadden, his wife, Frances L. Harrison and Anna M. Harrison were defendants in the action brought by Orson Wallace to foreclose his mortgage, and were personally served with the summons and complaint in that action. The complaint contained this allegation: "The plaintiff further shows, upon information and belief, that Alexander McFadden, Lunetta McFadden, Frances L. Harrison, Anna M. Harrison and Truman Jones have, or claim to have, some interest in or lien upon said mortgaged premises, or some part thereof, which interest or lien, if any, has accrued subsequently to the lien of said mortgagee." None of said defendants appeared in the action and a judgment of foreclosure was recovered by default, pursuant to which the sale before mentioned was made, and the writ of assistance was issued. The plaintiff's rights in the eighteen acres were subsequent in time

to the mortgage given to and foreclosed by Wallace, which was alleged to be a lien on the property, prior in law and equity to the rights of the plaintiff in this, and the defendant in the foreclosure action. If the plaintiff intended to assert title to the fixtures he was bound to do it in that action and he could not lie by until a judgment had been entered declaring his rights inferior to the mortgage, and then assert as against the purchaser under the judgment or his grantee that his claim to the buildings and machinery was prior to the lien of the mortgage. On the trial of this action the plaintiff testified that July 7, 1886, he stated in writing to the Ames Engine Manufacturing Co., for the purpose of obtaining credit, that he owned in fee the fifty-five acres of land covered by said two mortgages," and that March 3, 1887, he wrote to the agents of the Misses Harrison (the second mortgagees) that he had paid his father for the eighteen acres and held a deed thereof subject to the mortgage.

This statement was made for the purpose of obtaining a further loan from them. This evidence is entirely inconsistent with the plaintiff's present claim that he was merely the occupant of the premises, with the right to remove betterments, instead of the equitable owner with the right to have the legal title upon the payment of the Wallace mortgage; the plaintiff testified that he was not a tenant of his father and paid no rent. His position was that of a beneficial owner, subject to the mortgage, and all improvements which he made upon the property were subject to the rules of law applicable to mortgagors and mortgagees.

As an authority for the position that the agreement between the father and son impressed the character of chattels upon the buildings and machinery, we are referred to the case of Tyson v. Post, 108 N. Y. 217; an examination of the record in that case shows that the owner of the premises conveyed them for $70,000, of which $10,000 was paid down and $60,000 was secured to be paid by the grantee to the grantors by two mortgages on the premises. Post paid to the grantors $6,200 of the $10,000, and then took a deed of the premises from the first grantee, it being orally agreed between him, the mortgagees and Post that he might remove the railway and machinery whenever he chose. This was held sufficient as between the mortgagees and Post to change the railway and machinery which were immovables or fixtures, into moveables or personal chattels, and relieve them from the lien of the mortgages.

In the case at bar, if the mortgagees and the owners of the fee had agreed with the plaintiff upon a sufficient consideration that he might remove the buildings and machinery, then they, as between

the parties to the agreement, would have ceased to be fixtures, would have become movables and relieved from the lien of the mortgage. But the mortgagees in the case before us were not parties to the alleged agreement between the father and son who could not by an agreement between themselves affect the lien of the mortgages or the rights of the holder of them.

The judgment should be affirmed with costs.

BRADLEY, J. The mortgage, through the foreclosure of which the defendants derived their title, was prior to the agreement between the mortgagor and the plaintiff. The title taken by the foreclosure vested by relation as of the time mortgage was made. Rector, etc., v. Mack, 93 N. Y. 488; Batterman v. Albright, 122 id. 484. It does not appear that the mortgagee in any manner assented to such agreement.

In Sheldon v. Edwards, 35 N. Y. 279, the arrangement that the property there in question should be treated as personal was made between the mortgagor and mortgagee.

In Tifft v. Horton, 55 N. Y. 377, there was a stipulation of the mortgagee made before the sale that the legal rights of the plaintiff should not be changed by the foreclosure sale.

In Globe M. M. Co. v. Quinn, 76 N. Y. 23, the plaintiff was assignee of a lease of the premises made prior to the mortgage, and in Tyson v. Post, 108 N. Y. 217, the mortgagee was a party to the agreement that the property in controversy there should remain personal.' I concur in affirmance.

344. Manure.

Judgment affirmed.

CARROLL v. NEWTON.

17 HOWARD'S PRACTICE (N. Y.), 189. — 1858.

SARATOGA COUNTY COURT. One Daniel Hartnett rented of the defendant a house, barn, grocery and garden, at the yearly rent of $100. At the time of renting Hartnett told the defendant that he might have the manure to be made at the barn, if he would furnish the straw to be used there. The defendant replied that he could not furnish the straw as he had no more than he wanted himself. The plaintiff afterwards agreed with Hartnett to furnish, and did

1 Followed in Chandler v. Hamell, 57 App. Div. (N. Y.) 305. — ED.

furnish the straw, with the understanding that the manure should be his. Hartnett for some time kept from eighteen to twenty horses at the barn. The defendant drew the manure away, claiming it as his own, "on the ground that it was not movable." The plaintiff brought this action therefor and recovered a judgment for sixteen dollars damages and five dollars costs.

MCKEAN, COUNTY JUDGE. Where land is rented for agricultural purposes and manure is made upon it in the ordinary course of farming, such manure belongs to the landlord. Middlebrook v. Cerwin, 15 Wend. 169; Goodrich v. Jones, 2 Hill, 142. "But this rule does not apply to manure made in a livery stable or in any manner not connected with agriculture or in the course of husbandry." Daniels v. Pond, 21 Pick. 367. In Lassel v. Reed, 6 Me. 222, some of the cattle kept on the farm belonged to the lessor and were leased with the premises; others belonged to the tenant. Some of the hay also was purchased by the tenant, and the residue was cut on the farm. It was held that the manure belonged to the lessor, but the court said: "We do not mean to be understood, by this opinion, as extending the principles, on which it is founded, to the case of tenants of livery stables in towns, and perhaps some other estates, having no connection with the pursuits of agriculture; other principles may be applicable in such circumstances."

In Lewis v. Jones, decided by the Supreme Court of Pennsylvania in January, 1852, the defendant who was a tenant of agricultural lands, claimed part of the manure, on the ground that he had bought and used on the place some hay and other provender.

manure thus made was commingled with that made from the produce of the place.

In delivering the opinion of the court, Lewis, Justice, said: doctrine, that the manure goes with the land, is of course confined to farms which are let for agricultural purposes." He said also, "the tenant, by his own act, has rendered it impossible to ascertain the extent of his right. The doctrine of confusion of goods properly applies to his claim." This ruling clearly implies that, if there had been no commingling of the manure, the tenant could have held that made from provender bought by him, although he occupied agricultural lands.

When a landlord is allowed to hold manure, the reason for the rule would seem to be the fact that the manure is made from the produce of the farm, and, to allow the tenant to remove it, would tend to impoverish the farm. But where the manure is made from produce obtained elsewhere, or where the lands are not agricultural lands, no such reason, and, therefore, no such rule exists.

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