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der seal or without, and is the only action maintainable for use and occupation without any express agreement. All of these actions may be prosecuted wherever the lessee can be found and service obtained on him. Assumpsit is the most usual action for rent under the late acts on reformed procedure in the states still retaining the common law forms of action. In about half of the states all forms of action are reduced to one, and this discussion as to the form is unimportant.

$ 98. Same: Defenses. The action may be defended by proof of infancy of the lessee, payment, surrender and release, accord and settlement, eviction, abandonment because of the fraud of the lessor in obtaining the lease or untenantable condition of the premises resulting from the lessor's breach of his covenant to repair. It is no defense that the lessor has not performed his part of the contract unless the covenant to pay rent was dependent on performance by the lessor. The defendant may counterclaim in the action for rent, if properly pleaded, any damages he is entitled to for breach of duty by the lessor to repair, or any injury he has suffered from the breach of other covenants. The tenant may also set-off anything he has been compelled to pay on taxes, repairs, or the like, which the lessor ought to have paid, and which the lessee had to pay to obtain the enjoyment of the lease as he was entitled to it.

CHAPTER VI.

FIXTURES AND THE RIGHT TO REMOVE THEM.

§ 99. In general. A chattel annexed to land is called a fixture; and in another sense the word is used to include only such personal chattels as have been so annexed to land as to lose their character as chattels and become real property for certain purposes. There is no rule by which all cases can be determined; and there are cases which no rule can be certainly said to determine. The considerations which determine the question are the nature of the annexation, the adaptability of the chattel to the use of that part of the realty, the person by whom the annexation is made, and his interest in the chattel and in the land. Let us look at each of these points of view separately.

§ 100. Nature of annexation. If the thing is so annexed to the land that it has lost its original physical character and cannot be restored to its original condition as a practical and commercial matter, it has lost all of its chattel nature and is real property for all purposes and between all persons. For example, if A should steal B's paint and paint A's or C's house with it, the paint has lost its original character as a commercial commodity known as paint, and is not capable of being restored to its original condition as a commercial transaction; for it has been absolutely incorporated into the realty so as to lose its original character, it is no longer a chattel for any purpose or between any persons, but is inseparably annexed to and made part of the land to which it is annexed. We might go further and say that if A should steal B's shingles and with them make a roof to A's house, all that has been said of the paint would be true of the shingles; but it is readily seen, that as we progress down the scale, a point will soon be reached where B would have a right to recover his chattel notwithstanding the wrongful annexation of it by A to his own land. It is manifest, therefore, that in only a small number of cases can the method of annexation itself, alone, be decisive of the question as to whether the thing is now land or still a chattel for the purposes of the particular case.

§ 101. Annexation not indispensable in special cases. Indeed, it would not be difficult to imagine a case in which the thing has become real property for practically all purposes and yet is not annexed at all, as if A should steal B's ore, and with it make a key to the door of A's house. In this case it is believed that B would not be allowed to recover the key by proving that it was made from his

He could recover its value in an action against A for damages, and he might be able to maintain a bill in equity under some circumstances to establish a lien on the land for the value of his property that had been used to improve the land; but the thing has for all purposes lost its nature as a chattel and become land for all purposes, without ever being annexed to the land at all. And yet in most cases the method of annexation, while not of itself decisive of the character of the thing that was a chattel, may be important as an element of the decision of the question. It may indicate whether the intention at the time of annexation was for the thing to remain permanently where it was put, or whether it was placed there merely for a temporary purpose. It is only in the small class of cases in which the thing is peculiarly and exclusively serviceable for use in connection with the particular realty, that it can be regarded as realty without any annexation at all, such as the case of the key to the house door, the stone of the grist-mill, the saws of the saw-mill, and the like; where the house, or the mill would largely lose its usefulness without the fixture which requires in its use to be regularly attached and removed. Ordinarily no chattel becomes a part of the realty unless it is annexed and held in place by something more than its own weight, except in the case of chattels so large that mere weight makes permanent annexation, such as monuments, houses, and the like, and even as to these the ground is usually prepared to receive them.

ore.

$ 102. Constructive annexation and severance. What is effectually annexed to the land may be constructively severed by a sale of the fixture as a chattel by the owner of the land and chattel. Admitting that the thing is a true fixture and real property, the owner of the land and fixture may by a sale of the fixture make it the personal chattel of another. In such cases it is matter of debate whether the transfer must be sufficiently formal to pass an interest in land, and the majority of the courts would seem so to hold. On the other hand, it has been held that there may be a constructive annexation, as in the case of the saw and mill-stone above mentioned ($101). Again, there are a number of cases in which it has been held that an intention by the owner of the land to annex chattels to the realty and putting them on the ground or near it constitute such a constructive annexation as to make them fixtures before they have ever been in fact annexed. A man owning some city lots and being in the process of erecting a business block on one of them with structural iron and cut stone lying about for that purpose, gave a deed of the lots as security, and later sold the building material. It was held that the deed carried the building material, so that the holder of the deed had better title than the holder of the bill of sale. The court said: “The stone had been cut and dressed for the front of the building. Each piece of structural iron was of the dimensions provided in the plan of the building, and fit for the place where it was to go. At that time it was intended that the building would be completed.

It was surely intended that the incomplete building should be transferred to Thurber. It was surely intended that the building would be speedily completed with the building material at hand. And I think it therefore equally certain that it was intended that such material should

pass with the conveyance” (1).

§ 103. Adaptability to use of realty. A chattel may be so exclusively adapted to use in a particular part of realty that it is of no value in any other place, as the key to the house door; and in this class of cases adaptability is of itself sufficient to make the thing realty in all cases and for all purposes. Or the adaptability may be

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(1) Byrne v. Werner, 138 Mich. 328.

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