FIXTURES. Personal. telnittels to real estate, which may be severed and re moved by the party who has affixed them, or by his personal representative, against the will of the owner of the freehold.
2. Questions frequently arise as to whether given appendageS to a house or laud are to be considered part of the real estate, or whether they are to be treated as personal property: the latter are movable, the former not.
The annexation may be actual or construct ive. lst. By actual annexation is understood every mode by which a chattel can be joined or united to the freehold. The article must not be merely laid upon the ground : it must be fastened, fixed, or set into the land, or into some such erection as is unquestionably a part of the realty ; otherwise it is in no sense a fixture. Buller, Nisi P. 34; 3 Eaat, 38 ; 9 id. 215 ; 1 Taunt. 21 ; Pothier, Traits des Choses, 1. Locks, iron stoves set in brick work, posts, and window-blinds, afford ex amples of actual annexation. See 5 Hayw. No. C. 109 ; 20 Johns. N. Y. 29 ; 1 Harr. & J. Md. 289 ; 3 M'Cord, So. C. 553 ; 9 Conn. 63 ; 1 Miss. 508, 620 ; 7 Mass. 432 ; 15 id. 159 ; 4 Ala. 314. Some things, however, have been held to be parcel of the realty which are not annexed or fastened to it ; for example, deeds or chattels which relate to the title of the inheritance and go to the heir. Sheppard, Touchst. 469. But loose, movable machinery used in prosecuting any business to which the freehold is adapted cannot be considered part of the real estate nor in any way appurtenant to it. 12 N. H. 205. See, however, 2 Watts & S. Penn. 116, 390. So deer in a park, fish in a pond, and doves in a dove-house, go to the heir, and not to the exe cutor, being, like keys and heirlooms, con structively annexed to the inheritance. Shep pard, Touchst. 90; Pothier, Traits; des Choses, 1.
3. The general rule is, that fixtures once annexed to the freehold become part of the realty. But to this rule there are exceptions: as, first, where there is a manifest intention to use the fixture in some employment dis tinct from that of the occupant of the real estate ; second, where it has been annexed merely for the purpose of carrying on a trade, 3 East, 88; 4 Watts, Penn. 330 ; for
the fact that it was put up for such a purpose indicates an intention that the thing should not become part of the freehold. See 1 H. Blackst. 260. But if there is a clear inten tion that the thing should be permanently annexed to the realty, its being used for pur poses of trade would not, perhaps, bring the case within one of the exceptions. 1 H. Blackst. 260.
4. With respect to the different classes of persons who claim the right to remove a fix ture, it has been held that where the question arises between an executor and the heir at law the rule is strict that whatever belongs to the estate to which the fixture appertains will go to the heir; but if the ancestor manifested an intention (which it is said may be inferred from circumstanpes) that the things affixed should be conaidered personalty, they will be so treated, and will go to the executor. See Ba con, Abr. Executor, Administrator • 2 Strange, 1141 ; 1 P. Will. Ch. 94 ; Buller, Nisi P. 34. As between a vendor and vendee the same strictness applies as between an execu tor and an heir at law; for all fixtures which belong to the premises at the time of the sale, or which have been erected by the vendor, whether for purposes of trade or manufac ture, or not, as potash-kettles for manufac turing ashes, and the like, pass to the vendee of the land, unless they have been expressly reserved by the terms of the contract 6 Cow. N. Y. 663 ; 20 Johns. N.Y. 29. The same rule applies as between mortgagor and mortgagee, 15 Mama. 159; 1 Atk. Ch. 477; 16 Vt. 124; 12 N. H. 205; and as between a devisee and the executor, things permanently annexed to the realty at the time of the testator's death pass to the devisee,—his right to fixtures being similar to that of a vendee. 2 Barnew. & C. 80.