The question whether ranges, hot-water boilers, sinks, and wash-tubs are fixtures un der a mortgage depends on when and how they are attached to the house; Manning v. Ogden, 70 Hun 399, 24 N. Y. Supp. 70; 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 sim ilar to that of a vendee; 2 B. & C. 80; Fer ard, Fixt. 246. Tapestry which has been cut and pieced so as to cover the walls of a room and the space left by the doors and mantelpiece, and was nailed to wooden but tons let into the plaster and nailed to the brick work, passed as a fixture under the devise of the mansion-house; [1896] 2 Ch. 497 ; see also 3 L. R. Eq. 382, where, under a will, tapestry, pictures, and frames filled with satin and attached to the walls, and also statues, figures, vases, and stone garden seats set in place by the testator who was tenant for life, which were essentially part of the house or the architectural designs of the building or grounds, however fastened, were fixtures, and could not be removed, but glasses and pictures not in panels, not being part of the building, were not fixtures.
Tapestries fixed by a tenant for life to. the walls of a house and easily removable therefrom do not pass to the remainderman ; [1901] 1 Ch. 523, affirmed [1902] App. Cas. 157; where a life tenant leases the premises and covenants with his tenant to purchase all additional machinery added thereto, which he does, at the expiration of the term for years, on his death, his widow is entitled to the machinery as against the remainder man ; [1905] 1 Ch. 406.
Where a husband, managing his wife's property as her agent, voluntarily, at his own expense, places thereon a boiler, en gine, and connections for furnishing power, and subsequently joins his wife in executing a mortgage on the land, the boiler and en gine are not trade fixtures, and the husband, as against the purchasers at sheriff's sale on proceeding, under the mortgage, has no right to remove them; Albert v. Uhrich, 180 Pa. 283, 36 AtL 745.
But as between a landlord and his tenant the strictness of the ancient rule has been much relaxed. The rule here is understood to be that a tenant, whether for life, for years, or at will, may sever at any time be fore the expiration of his tenancy, and carry away all such fixtures of a chattel nature as he has himself erected upon the demised premises for the purposes of ornament, do mestic convenience, or to carry on trade; pro vided, always, that the removal can be ef fected without material injury to the free hold ; Beers v. St. John, 16 Day (Conn.) 322; Pemberton v. King, 13 N. C. 376 ; Fairis v. Walker, 1 Bail. (S. Car.) 541; Om bony v. Jones, 19 N. Y. 234; Harkey v. Cain, 69 Tex. 146, 6 S. W. 637; Atchison, T. & S. F. R. Co. v. Morgan, 42 Kan. 23, 21 Pac. 809, 4 L. R. A. 284, 16 Am. St. Rep. 471; Powell v. Bergner, 47 Ill. App. 33 ; and this is so
whether it be made of wood or brick; Wig gins Ferry Co. v. R. Co., 142 U. S. 398, 12 Sup. Ct. 188, 35 L. Ed. 1055. There have been adjudications to this effect with respect to bakers' ovens ; saltpans ; carding-ma chines ; cider mills and furnaces ; steam-en gines; soap-uoilers' vats and copper stills ; mill-stones ; •Dutch barns standing on a foundation of brick-work set into the ground; a varnish-house built upon a similar founda tion, with a chimney ; and to a ball-room, erected by the lessee of an inn, resting upon stone posts slightly imbedded in the soil; and also in regard to things ornamental or for domestic convenience : as, furnaces ; stoves ; cupboards and shelves ; bells and bell-pulls; gas-fixtures ; portable hot-air fur nace; Towne v. Fiske, 127 Mass. 125, 34 Am. Rep. 353 ; Heysham v. Dettre, 89 Pa. 506; Brown v. Power Co., 55 Fed. 229; pier and chimney-glasses, although attached to the wall with screws ; marble chimney-pieces; grates; window-blinds and curtains. The decisions, however, are adverse to the re moval of hearth-stones, doors, windows, locks and keys ; ecause such things are peculiar ly adapted to the house in which they are affixed; also, to all such substantial addi tions to the premises as conservatories, greenhouses (except those of a professional gardener), stable, pig-styes and other out houses, shrubbery and flowers planted in a garden. Nor has the privilege been extend ed to erections for agricultural purposes ; though it is difficult to perceive why such fixtures should stand upon a less favored basis than trade fixtures, when the relative importance of the two arts is Tayl. Landl. & Ten. § 544; 3 East 38; Mc Cullough v.. Irvine's Ex'rs, 13 Pa. 438. But some American authorities question the cor rectness of the doctrine ; Van Ness v. Pacard, 2 Pet. (U. S.) 137, 7 L. Ed. 374 ; Holmes v. Tremper, 20 Johns. (N. Y.) 29, 11 Am. Dec. 238; 2 Ferard, Fiat. 60. A railroad company, occupying land under an agreement, on the termination of such, may remove the rails which have been laid; Wiggins Ferry Co. v. R. Co., 142 U. S. 396, 12 Sup. Ct. 188, 35 L. Ed. 1055.
Ordinary trade fixtures removable without material injury do not pass to the landlord by act of renewing the term ; Smusch v. Kohn, 22 Misc. 344, 49 N. Y. Supp. 176 ; Bernheimer v. Adams, 70 App. Div. 114, 75 g. Y. Supp. 93; contra, Ogden v. Garrison, 32 Neb. 302,117 N. W. 714, 17 L. R. A. (N. S.) 1135; Precht v. Howard, 187 N. Y. 136, 79 N. E. 847, 9 L. R. A. (N. S.) 483; Wadman v. Burke, 147 Cal. 351, 81 Pac. 1012, 1 L. R. A. (N. S.) 1192, 3 Ann. Cas. 330, where the tenant renewed without expressly reserving to himself the right to the fixtures installed Dy him. When the lessee is in bankruptcy, the trade fixtures ordinarily go to his trus tee as against the lessor ; Montello Brick Co. v. Trexler, 167 Fed. 482, 93 C. C. A. 118.