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chattel has become a fixture or not, the great criterion is intention. If this is expressed, it controls. If it is not expressed, resort must be had to further tests to determine the intention. The tests which have been recognized are the object of the annexation (that is, whether a permanent or temporary improvement) as inferred from the relation to the land of the annexer of the chattel, together with the mode and degree of annexation (that is, whether removal would injure either the chattel or the land), or the adaptability and essentiality of the chattel to the use or purpose of that part of the realty with which connected. If the annexer is the owner of the land, either of the last two tests could be used; but if the annexer is a tenant, the mode and degree of annexation, and not the adaptability to the use of the realty, would be decisive. In the case of a tenant, the presumption is that any improvements that he may make are not to be fixtures; and hence he may remove the same before the expiration of his term unless such removals would cause injury to either the chattel or the freehold.2

A concrete illustration will help to make clearer when a chattel will become land, or a fixture. A is the owner of a sawmill, and in that connection uses a mill chain for drawing logs up to the mill. The chain is prepared for being hooked and unhooked at pleasure. A executes to B a deed in which he conveys to B all his title and interest in such sawmill with the privileges and appurtenances. Thereafter A goes to the sawmill, disconnects the mill chain, and carries it away. B may now sue A in conversion for exercising acts of dominion over his property. As between A and B the mill chain is a fixture, and title thereto passes to B along with the title to the sawmill. The chain was annexed to the sawmill by the owner, A, who must then have intended a permanent improvement, and it was adapted to that part of the realty with which it was connected, even though it would injure neither the chattel nor the land to remove the same. Had A been a tenant in 2 Wolford v. Baxter, 33 Minn. 12; Parsons v. Copeland, 38 Me. 537.

possession of the sawmill at the time of his making the annexation, a temporary improvement would be presumed, and since the chattel could be removed without injury to itself or the land, it would then be regarded not as a fixture, but as a chattel still, and A would have a right to carry the same away.3

The subject of fixtures is a source of much ligitation and courts have been compelled to adopt various tests to determine whether a particular thing originally a chattel has become a fixture as a result of its connection with realty. As has been said, intention, if expressed, is conclusive, but in the many cases where it is not expressed, other considerations must govern. The parties to the litigation may be regarded, and one or the other party favored by considerations of public policy. For instance, the heir in an action is preferred to the executor or administrator, the vendee as against the vendor, unless the articles have been expressly reserved in the sale. But as between landlord and tenant, especially where the tenant is engaged in trade or commerce, the rule of construction favors the tenant, and he is allowed to remove all fixtures of a chattel nature annexed by him, if it can be done without material injury to the freehold. Trade fixtures (chattels), and to some extent agricultural fixtures (chattels) may today as a rule be removed by a tenant without express agreement with the landlord. Among the things allowed by decisions of various courts to be removed by a tenant are bakeovens, machinery, engines, platform scales, boilers and tanks, furnaces, coal bins, grates, steam radiators and gas fixtures, outhouses, varnish house used in connection with business, doorplates, and bells.

In all cases, however, the tenant must remove the fixtures before the expiration of the term of his lease or at all events while he is in possession of the premises under a rightful claim. This applies also to nurserymen occupying leased lands who have planted shrubs and trees in the ordinary course of their business.

3 Farrar v. Stackpole, 6 Me. 154.

CHATTELS AS PERSONAL PROPERTY

Chattels are the objects to which the right of personal property distinctly relates. Chattels should include only movables, but, as already explained, certain immovables (that is, estates less than freeholds) have been arbitrarily classed as chattels. This necessitates a division of chattels into chattels real and chattels personal. Chattels real include leaseholds and emblements. They are classed as chattels, but they pertain to the realty and have the general characteristics of realty. Chattels personal are divided into corporeal and incorporeal. Corporeal chattels are such as have a corpus, things of which the owner may take bodily possession. For example: money; furniture; machinery; live stock; etc. They are divided into two classes, animate and inanimate. Incorporeal chattels are not material objects, although they may be evidenced by some material thing. For example: a debt; an obligation to perform services; a trade-mark; etc. They are invisible. They cannot be manually delivered by one person to another, but can only be delivered symbolically. As a consequence in early times they were not regarded as objects of property. But the law in this respect underwent a

change.

Now a person may not possess and enjoy such objects of ownership, but he may assign and transfer his rights to them as freely as he can assign and transfer his rights to corporeal chattels. They are objects of ownership, though the owner thereof is not the owner of objects. They include such rights as the right of a promisee in a contract to the performance of his obligation by the promisor; the remedial rights to damages for torts and breaches of contracts and quasi-contracts; and the right to trade-marks, etc. Many of these rights, or incorporeal chattels, are known by specific names, as stock, bonds, bills, notes, insurance, good will, etc. These are objects of ownership. The owner thereof has a right to positive conduct from some one with reference thereto.

There are two other expressions which are sometimes

used instead of corporeal and incorporeal, to wit: choses in possession and choses in action. When used, chose in pos+ session is synonymous with corporeal chattel, and chose in action with incorporeal. The terms chose in possession and chose in action are not so accurate as the other terms, and sometimes are even confusing. Suppose a thief steals a coat and recovery be sought of the thief. Is not this a chose in action? No. It is a chose in possession. Again, if one owns bank stock, is it not a chose in possession? No. This is a chose in action. If the terms corporeal and incorporeal are employed there is no such confusion. We shall now proceed to consider the various kinds of chattels one by one.

§ 11. Leaseholds. The leasehold is the most important chattel real. It is the right to the possession and profits of land for a specified term, either for years, from year to year, at will or at sufferance. Until the tenant enters, he has only an interesse termini (an interest in the term). A leasehold may be created by oral contract, but wherever the Statute of Frauds prevails it is created by an instrument called a lease. Though classified as a chattel it possesses most of the incidents of real property and for this reason the reader is referred to the topic of real property for a full discussion thereof. The time for which the lease is to run is known as the term, so-called because leases for years are for a certain limited period of time. This term, if it satisfies the Statute of Frauds, may begin any time in the future, as livery of seizin is not required of mere chattels. The compensation for the enjoyment of the land held under a lease is known as rent. The person granting the lease is known as the lessor, and the one to whom it is given, as the lessee.

There are some covenants which are implied in every lease and need not be expressed. Those on the part of the lessor are, for quiet enjoyment, against incumbrances, for further assurance, and to pay taxes and assessments. Those on the part of the lessee are, to pay rent, not to commit waste, and to make tenantable repairs. It is com

mon to add other express covenants. Certain covenants such as to repair, to reside on the premises, to use the premises in a prescribed manner are said to run with the land, in a distinction from other covenants which are called personal, such as the covenant of right to convey and the covenant against incumbrances. In the absence of a provision forbidding it, a lessee may assign or sub-lease, but in the latter case there is no privity of estate between the original lessor and the under lessee. A tenancy may be terminated by lapse of time, by merger, by surrender, by forfeiture, and by notice to quit.

§ 12. Emblements, and Fructus Industriales. The produce of the soil is divided into two main classes, fructus naturales, embracing not only the spontaneous and natural growth of the earth, but also those growths which, although planted in the first instance, do not require manual labor for their cultivation, and fructus industriales, such as crops and vegetables produced by the annual or periodical labor of men. For the most part the former are regarded as objects of real estate and the latter as objects of personal property; yet when severed from the soil fructus naturales become personal chattels. On a sale of land if the crops are not severed, they will pass to the vendee, unless expressly reserved. A chattel mortgage of a growing, or planted crop, or even of a crop to be planted by one in possession of land, is valid, in that it creates a lien superior to subsequent attachment or execution. Thus the law by legal construction bestows upon the objects of real property the character and incidents of chattels by, in effect, applying a severance which would have taken effect but for some unforeseen contingency. An important illustration of this principle is the doctrine of emblements, according to which a tenant, or his personal representative, is entitled to fructus industriales planted by him, and to the right of ingress and egress for cultivating and removing the same, if the end of his tenancy is uncertain (for life, or at will), and his tenancy is determined before harvest without his fault. For example: A is in possession and plants

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