Between: Climie
And: Wood

Judges:
Willes J
Keating J
Blackburn J
Mellor J
Montague Smith J
Lush J
Hayes J
Brett J

Subject References:
TRADE FIXTURES
Mortgage
Mortgagor and Mortgagee

Judgment date: 5 July 1869

Judgment by:
Willes J
Keating J
Blackburn J
Mellor J
Montague Smith J
Lush J
Hayes J
Brett J

Trade fixtures which have been annexed to the freehold for the more convenient using of them, and not to improve the inheritance, and which are capable of being removed without any appreciable damage to the freehold, pass under a mortgage of the freehold to the mortgagee.

APPEAL by the plaintiff from a decision of the Court of Exchequer making absolute a rule to enter a verdict for the defendant. ^[F1]

June 21, 22. The case was argued by Hon. G. Denman, Q.C. (Simpson with him), for the plaintiff, and by H. Matthews, Q.C. (Channell with him), for the defendant.

The following authorities, in addition to those referred to in the Court below, were cited during the argument:-

Sumner v. Bromilow; ^[F2] Ex parte Cotton; ^[F3] Trappes v. Harter; ^[F4] Wood v. Hewett; ^[F5] Mant v. Collins, cited in Wood v. Hewett; ^[F6] Lawton v. Lawton; ^[F7] Ex parte Quincey; ^[F8] Lawton v. Salmon; ^[F9] Dudley v. Warde; ^[F10] Boyd v. Shorrock; ^[F11] Ex parte Barclay; ^[F12] Ex parte Belcher; ^[F13] Parsons v. Hind; ^[F14] Williams on Executors, 6th ed. vol. i. p. 686; Amos & Ferrand on Fixtures, and ed. pp. 1, 138, 215.

Cur. adv. vult.

July 5. The judgment of the Court (Willes, Keating, Blackburn, Mellor, Montague Smith, Lush, Hayes, and Brett, JJ.), was delivered by WILLES, J.

The question in this case turns upon whether a claimant under the mortgagees of certain land or the purchaser from the mortgagor is entitled to an engine and boiler employed in a sawmill on the mortgaged premises and erected under the circumstances and in the manner proved at the trial. The Court of Exchequer held that the claimant under the mortgagees was entitled, and we are of opinion that their judgment ought to be affirmed. There is no doubt that sometimes things annexed to land remain chattels as much after they have been annexed as they were before. The case of pictures hung on a wall for the purpose of being more conveniently seen may be mentioned by way of illustration.

On the other hand, things may be made so completely a part of the land, as being essential to its convenient use, that even a tenant could not remove them. An example of this class of chattel may be found in doors or windows. Lastly, things may be annexed to land, for the purposes of trade or of domestic convenience or ornament, in so permanent a manner as really to form a part of the land; and yet the tenant who has erected them is entitled to remove them during his term, or, it may be, within a reasonable time after its expiration. Now in the present case we think, upon the evidence and findings of the jury, that the engine and boiler belonged to this last class, and if erected by a tenant might have been removed by him during his term; and in this view we are supported by the authority of Lyde v. Russell. ^[F15]

The reasons, however, for a tenant with a limited interest being allowed to remove trade fixtures, are not applicable to the owner of the fee. Thus in Fisher v. Dixon, ^[F16] they were held not to apply as between heir at law and executor, and the language of Lord Cottenham (at p. 328) explains the distinction between landlord and tenant on one hand, and heir at law and executor on the other.

"The principal stress of the argument on the side of the appellant [the executor]"

he says,

"has been that this [machinery] is to be protected, because it is necessary for the encouragement of trade that this property should be considered not as belonging to the real estate, but as belonging to the personal estate. The principle upon which a departure has been made from the old rule of law in favour of trade appears to me to have no application to the present case. The individual who erected the machinery was the owner of the land and of the personal property which he erected and employed in carrying on the works; he might have done what he liked with it; he might have disposed of the land; he might have disposed of the machinery; he might have separated them again.

It was therefore not at all necessary in order to encourage him to erect those new works which are supposed to be beneficial to the public that any rule of that kind should be established, because he was master of his own land. It was quite unnecessary, therefore, to seek to establish any such rule in favour of trade as applicable here, the whole being entirely under the control of the person who erected this machinery."

And we are of opinion, that the decisions which establish a tenant's right to remove trade fixtures do not apply as between mortgagor and mortgagee any more than between heir at law and executor. The irrelevancy of these decisions to cases where the conflicting parties are mortgagor and mortgagee was pointed out in Walmsley v. Milne, ^[F17] and we concur with the observations made in that case by the Court of Common Pleas. Here, therefore, we have come to the conclusion that the verdict was rightly directed by the Court of Exchequer to be entered for the defendant who represented the mortgagees, and that the plaintiff, who had no claim beyond what he derived from the mortgagor, was not entitled to recover.

Judgment affirmed.

Attorney for plaintiff: Leefe.

Attorneys for defendant: Chester & Urquhart.