With respect to the different classes of per sons who claim the right to remove a fix ture, it has been held that where the ques tion arises between an executor and the heir at law the rule is strict that whatever be longs to the estate to which the fixture ap pertains will go to the heir ; but if the ances tor manifested an intention (which it is said may be inferred from circumstances) that the things affixed should be considered per sonalty, they will be so treated, and will go to the executor. See Bac. Abr. Executor, Administrator; 1 P. Wins. 94; Bull. N. P. 34 ; 12 Cl. & F. 312; Morrison v. Berry, 42 Mich. 389, 4 N. W. 731, 36 Am. Rep. 446.
As between a vendor and a 'vendee the same strictness applies as between an ex ecutor and an heir at law; for all fixtures which belong to the premises at thqaime of the sale, or which have been erected by the vendor, whether for purposes of trade or manufacture or not, as potash-kettles for manufacturing ashes, and the like, chandel iers and gas-brackets, pass to the vendee of the land, unless they have been expressly re served by the terms of the contract; Miller v. Plumb, 6 Cow. (N. Y.) 665, 16 Am. Dec. 456 ; Holmes v. Tremper, 20 Johns. (N. Y.) 29, 11 Am. Dec. 238 ; Ewell, Fixt. 271; Tyler, Fixt. 519 (see also Shaw v. Lenke, 1 Daly [N. Y.] 487; Montague v. Dent, 10 Rich. L. [S. C.] 135, 67 Am. Dec. 572); a faucet at tached to a hot-water boiler and a rosebush in the yard pass by deed of the realty ; Kirchman v. Lapp, 19 N. Y. Supp. 831; but a filter capable of delivering 105 gallons of water per minute, resting loosely on a fac tory floor, is a fixture; Sayles v. Purifying Co., 62 Hun 618, 16 N. Y. Supp. 555.
Where the vendee under a contract for the purchase of land is in possession and al lows a third party to erect thereon a small building, agreeing that it should be personal ty, and subsequently the contract for the purchase of land is rescinded, the building may still be removed by the third party ; Brannon v. Vaughan, 66 Ark. 87, 48 S. W. 909.
The same rule applies as between mort gagor and mortgagee; Southbridge Say. Bank v. Mason, 147 Mass. 500, 18 N. E. 406, 1 L. R. A. 350; 1 Atk. 477; Preston v. Briggs, 16 Vt. 124; Despatch Line of Packets v. Manuf'g Co., 12 N. H. 205, 37 Am. Dec. 203 ; Ewell, Fixt. 271. The same rule as to own ership of property in chattels annexed to realty prevails between a mortgagor andj mortgagee as between a grantor and gran tee; and in either case it operates more strongly in favor of the mortgagee or gran- I tee than the landlord where his title is sailed by a lessee ; Kinnear v. Railways Co.,
223 Pa. 390, 72 Atl. 808.
Wires for conducting an electrical current to lamps pass as fixtures under a mortgage of the electric light plant; Fechet v. Drake, 2 Ariz. 239, 12 Pac. 694; and the annun ciator and all the wires of an electric-bell system are part of the realty of a hotel and pass as fixtures under a mortgage; Capehart v. Foster, 61 Minn. 132, 63 N. W. 257, 52 Am. St. Rep. 582 ; in which case steam radiators and an office-desk attached to the building were held to be fixtures, while gas-burners and chandeliers were held not to pass as such to the mortgagee; contra, as to the last point ; Manning v. Ogden, 70 Hun 399, 24 N. Y. Supp. 70; and in National Bank of Catasauqua v. North, 160 Pa. 303, 28 Atl. 694, it was held that steam radiators and valves were not annexed to the realty, but, being exactly analogous to gas fixtures were severable from the realty.
Where chattels are sold under conditional sale and annexed to the realty, the seller may assert his title as against a subsequent, mortgagee of the land; Adams Mach. Co. v. Ass'n, 119 Ala. 97, 24 South. 857; Davis v. Bliss, 187 N. Y. 77, 79 N. E. 851, 10 L. R. A. (N. S.) 458; and so where the owner of a greenhouse leased the land and sold the greenhouse and subsequently mortgaged the land, the mortgagee was not entitled to the greenhouse; Royce v. Latshaw, 15 Colo. App. 420, 62 Pac. 627 ; but where a furnace was sold and installed under similar circum stances, and the premises were bought in un der a foreclosure sale under a prior mort gage, it was held that the furnace passed with the realty ; Fuller-Warren Co. v. Har ter, 110 Wis. 80, 85 N. W. 698, 53 L. R. A. 603, 84 Am. St. Rep. 867; in England, ma chines bought on conditional sale and at tached to the floor become part of the real ty; [1903] 1 K. B. 87, affirmed [1904] App. Cas. 466 ; but where the mortgagee is only an equitable mortgagee, it was held that the vendor of the machine had a prior equitable interest which could not be defeated; [1907] 1 Ch. 575.