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who is entitled to the inheritance. The rule, however, never was, at least as far back as we can trace it in the books, inflexible and without exceptions. It was construed most strictly between executor and heir in favor of the latter; more liberally between tenant for life or in tail, and remainderman or reversioner, in favor of the former; and with much greater latitude between landlord and tenant in favor of the tenant. But an exception of a much broader case, and whose origin may be traced almost as high as the rule itself, is of fixtures erected for the purposes of trade. Upon principles of public policy, and to encourage trade and manufactures, fixtures which were erected to carry on such business were allowed to be removed by the tenant during his term, and were deemed personalty for many other purposes. The principal cases are collected and reviewed by Lord Ellenborough in delivering the opinion of the court in Elwes v. Mawe (3), and it seems unnecessary to do more than to refer to that case for a full summary of the general doctrine and its admitted exceptions in England. The court there decided that in the case of landlord and tenant there had been no relaxation of the general rule in cases of erections solely for agricultural purposes, however beneficial or important they might be as improvements of the estate. Being once annexed to the freehold by the tenant they became a part of the realty and could never afterward be severed by the tenant.

The distinction is certainly a nice one, between fixtures for the purposes of trade and fixtures for agricul

(3) 3 East, 38,


tural purposes; at least in those cases where the produce constitutes the principal object of the tenant and the erections for the purpose of such beneficial enjoyment of the estate. But that point is not now before us; and it is unnecessary to consider what the true doctrine is or ought to be on this subject. However well settled it may now be in England, it cannot escape remark that learned judges at different periods in that country have entertained different opinions upon it, down to the very date of the decision in Elwes v. Mawe. The common law in England is not to be taken in all respects to be that of America. Our ancestors brought with them its general principles, and claimed it as their birthright; but they brought with them and adopted only that portion which was applicable to their general situation. There could be little or no reason for doubting that the general doctrine as to the things annexed to the freehold, so far as it respects heirs and executors, was adopted by them. The question could arise only between different claimants under the same ancestor, and no general policy could be subserved by withdrawing from the heir those things which his ancestor had chosen to leave annexed to the inheritance. But between landlord and tenant it is not so clear that the rigid rule of the common law, at least as it is expounded in 3 East, 38, was so applicable to their situation as to give rise to necessary presumption in its favor. The country was a wilderness, and the universal policy was to procure its cultivation and improvement. The owner of the soil as well as the public had every motive to encourage the tenant to devote himself to agriculture, and to favor any erections which should aid this result; yet, in the comparative poverty of the country, what tenant could afford to erect fixtures of much expense or value if he was to lose his whole interest therein by the very act of erection? His cabin or log hut, however, necessary for any improvement of the soil, would cease to be his the moment it was finished. It might, therefore, deserve consideration whether, in case the doctrine were not previously adopted in a state by some authoritative practice or adjudication, it ought to be assumed by this court as a part of the jurisprudence of such state upon the mere footing of its existence in the common law. At present it is unnecessary to say more than that we give no opinion on this question. The case which has been argued at the bar may well be disposed of without any discussion of it.

It has already been stated that the exception of buildings and other fixtures for the purpose of carrying on a trade or manufacture is of very ancient date, and was recognized almost as early as the rule itself. It has been suggested at the bar that this exception in favor of trade has never been applied to cases like that before the court, where a large house has been built and used in part as a family residence. But the question, whether removable or not, does not depend upon the form or size of the building, whether it has a brick foundation or not, or is one or two stories high, or has a brick chimney or not. The sole question is whether it is designed for purposes of trade or not. A tenant may erect a large

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as well as a small messuage, or a soap-boilery of one or two stories high, and on whatever foundation he may choose.

Then, as to the residence of the family in the house, this resolves itself into the same consideration. If the house were built principally for a dwellinghouse for the family, independently of carrying on the trade, then it would doubtless be deemed a fixture, falling under the general rule, and immovable. But if the residence of the family were merely an accessory for the more beneficial exercise of the trade, and with a view to superior accommodation in this particular, then it is within the exception. There are many trades which cannot be carried on well without the presence of many persons by night as well as by day. It is so in some valuable manufactories. It is not unusual for persons employed in a bakery to sleep in the same building. Now what was the evidence in the present case? It was, 'that the defendant erected the building before mentioned, with a view to carry on the business of a dairyman, and for the residence of his family and servants engaged in that business.' The residence of the family was then auxiliary to the dairy; it was for the accommodation and beneficial operation of this trade.” The judgment for the defendant was affirmed (4).

§ 107. Right of vendor, mortgagor, and executor to remove. In the foregoing case a view is given of the notion that prevailed nearly a hundred years ago in this country, and which may be taken as the least favorable view to the tenant that would be held in any state of

(4) Van Ness v. Pacard, 2 Peters 137,

this country at this time. It will be instructive to compare this with a recent decision (5) between mortgagor and mortgagee (between whom the rule would be the same as between vendor and vendee, executor and heir), which goes as far to the other extreme, and probably would not be followed by the majority of courts even at the present time.

“The respondent borrowed $6,000 from appellant, and secured payment of same by a mortgage upon two lots in Seattle, on which was at the time a residence in which were domiciled respondent and family. At the time of the execution of the mortgage, there were in the residence four mantels. These mantels were of hardwood, the frames standing above the brick projection of the fireplace, and extending down each side to the floor. They were about seven or eight feet high, consisting of a large center plate mirror, and a series of small mirrors, brackets, and shelves. Subsequent to the execution of the mortgage, there was also placed in the residence a porcelain bath-tub standing on four legs, and connected in the usual manner with the soil pipes. A hot-water heater was also connected with the building by the usual methods of plumbing. Appellant foreclosed its mortgage; and, upon the vacation of the premises by the respondent, he took from the house the mantels, the hot-water boiler, and bath-tub above described. The present action was brought to replevy the said mantels, bath-tub, and heater. The matter was submitted to a jury, and a verdict was

(5) Philadelphia M. & T. Co. v. Miller, 20 Wash. 607.

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