Commercial Fire Insurance Company v. Capital City Insurance Company.

not recover. It is doubtful if this ruling can be vindicated, unless the books delivered in part performance had been restored to the printer.

. In Andrews v. Durant, 11 N. Y. 35; s. c., 62 Am. Dec. 55, the foregoing cases were reviewed, and the doctrine ably discussed by Judge DENIO. He dissented from them entirely, as declarative of a general principle, and fortified his opinion with an ample array of authorities. He said: "In general a contract for the building of a vessel or other thing not yet in esse, does not vest any property in the party for whom it is agreed to be constructed, during the progress of the work, nor until it is finished and delivered, or at least ready for delivery, and approved by such party. And the law is the same though it be agreed that payments shall be made to the builder during the progress of the work, and such payments are made accordingly." And the following cases fully sustain the doctrine asserted by Judge DENIO: Mucklow v. Mangles, 1 Taunt. 318; Adams v. Nichols, 19 Pick. 275; s. c., 30 Am. Dec. 137; Boyle v. Agawam Canal Co., 22 Pick. 381; s. c., 33 Am. Dec. 749; Laidler v. Burlinson, 2 Mees. & Wells. 602; Merritt v. Johnson, 7 Johns. 473; s. c., 5 Am. Dec. 289; Johnson v. Hunt, 11 Wend. 135; Gregory v. Stryker, 2 Denio, 628; Halterline v. Rice, 62 Barb. 593; Scull v. Shakespeare, 75 Penn. St. 297; Philadelphia v. Brooks, 81 Penn. St. 23; West Jersey R. Co. v. Trenton Car Works Co., 32 N. J. Law, 517; Elliott v. Edwards, 35 N. J. Law, 265; 36 N. J. Law, 449; Williams v. Jackman, 16 Gray, 514; Wright v. Tetlow, 99 Mass. 397; Green v. Hall, 1 Houst. 506; Cowgill v. Ford, 2 Houst. 164; Calias Steamboat Co. v. Scudder, 2 Black. 372; 1 Benj. Sales (4th Am. ed.), §§ 408-413.

It will be seen by comparing the authorities cited above that the American rule differs from the English. We think those on this side the Atlantic rest on a much sounder basis, and we will follow them.*

The house not having been finished nor delivered by Holt to Mrs. Barrett, its destruction was his loss. He therefore had an insurable interest.

CLOPTON, J., not sitting.

Judgment affirmed.

*See notes, 36 Am. Rep. 436; 38 Am. Rep. 208.— REP.

Rogers v. Prattville Manufacturing Company.

ROGERS V. Prattville Manufacturing Company.

(81 Ala. 483.)

Fixtures — machinery — test of annexation.

The mere use of machinery in a mill does not render it a fixture, but the question always depends on the use, nature and character of the annexation, and on the intention of the parties.*

M

ORTGAGE foreclosure. The opinion states the case. The defendant had judgment below.

Sadler & Holmes, for appellant.

C. S. G. Doster, contra.

STONE, C. J. The object of the present bill is the foreclosure of A mortgage. The mortgage was made to secure the payment of debts therein enumerated. It conveys only real estate, consisting of three several lots in the town of Prattville, describing them by fixed beginnings, metes, bearings and dimensions. At the end of the description of one of the lots conveyed is the following clause: "The above-described lot or parcel of land, embracing the factory building used as a cotton mill; also the canal or race conducting the water to the wheel propelling the machinery in said cotton mill." The mortgage was executed under a resolution of the stockholders of the Prattville Manufacturing Company, a private corporation, at a meeting held for the purpose. By that resolution the secretary of the company was "authorized, empowered and directed to make, execute and deliver * for, and as

the secretary of the Prattville Manufacturing Company No. 1, a mortgage or lien upon all the real estate belonging to said company." No authority was given to mortgage personalty, and none was mortgaged. The sole question sought to be raised by the assignments of error is, to what extent does the mortgage of the realty carry with it the machinery that was employed in operating the

*See Hutchins v. Masterson (46 Tex. 551), 26 Am. Rep. 286; Thomas v. Davis (76 Mo. 72), 43 Am. Rep. 756; McConnell v. Blood (123 Mass. 47), 25 Am. Rep. 12; Hubbell v. East Cambridge, etc., Bank (132 Mass. 447), 42 Am. Rep. 446, and note 447.

Rogers v. Prattville Manufacturing Company.

cotton mill? To what extent has such machinery become a part of the realty, so as to pass under the mortgage?

The charge in the bill under which relief is claimed as to the machinery is in the following language: "Orator further avers that at the time of the execution of said mortgage, and since that time, the said Prattville Manufacturing Company No. 1, had and have attached and fixed to the realty large amounts, parcels and articles of machinery, such as are usually employed in the cotton manufacturing business, and your orator avers that said machinery so fixed and attached to the realty has become a part thereof, and your orator has a lien thereon by virtue of said mortgage, and the same is bound, together with the realty, for the payment of his said debt." The bill contains no other description of the machinery or fixtures sought to be subjected. The prayer of the bill is, that said mortgage be declared "a lien upon the property therein described, and upon all the machinery affixed to the realty."

The answer admits that certain enumerated articles of machinery are so attached to the freehold as to be a part of the realty, while as to other parts, it denies that they are so attached as to pass under the granting clauses of the mortgage. Schedules are attached containing the names and number of each, together with a description of the rooms in the factory in which it was said they were. It is not shown how and to what extent these various articles of machinery were attached to the realty, if attached, or used at all. The bill was filed September 6, the answer September 30, and the decree of the chancellor was rendered October 5, all in 1886. No testimony is found in the record, and we suppose none was taken, as no sufficient time therefor intervened between the filing of the answer and the rendition of the decree, granting relief to complainant. In the decree, "it is ordered and decreed that complainant's said mortgage is a lien upon the property therein mentioned, and that the same be foreclosed. But as there is some question as to what machinery is included in, or upon which said mortgage is a lien, it is ordered and decrced that all fixtures upon the realty mentioned in said mortgage, or placed upon the premises after the execution of the mortgage, are subject to the mortgage lien, both of machinery and other property; but movable property or property which is not a fixture, and which was not mentioned in said mortgage, whether placed on the premises before or after the execution of the mortgage, is not subject to the mortgage lien."

Rogers v. Prattville Manufacturing Company.

All the authorities agree that no precise, unerring rule can be laid down, applicable to all cases, which defines the precise boundary which separates movable chattels from immovable fixtures. It varies with the different relations of parties, and is largely dependent on intention, either shown or inferred. Tillman v. De Lacy (MSS.), Ala.; 1 Jones Mort., § 428; Winslow v. Mer. Ins. Co., 4 Metc. 306. We need not however pursue this inquiry.

The decree of the chancellor, copied above, is free from objection, as far as it goes. It lays down a correct rule; for it is certainly true that only such personalty as has in legal contemplation become annexed or affixed to the realty, passes under a conveyance of the land. As we have said, this record does not inform us to what extent, if at all, any of the machinery was annexed or attached to the freehold, so as to become a part of it. Hence, the chancellor could not have ruled, on the evidence before him, that complainant was entitled to greater relief than defendant had admitted in its answer. If the answer was not full enough, proof should have been made, so as to have the court's ruling on its suf ficiency. As to the machinery which is the foundation of the assignments of error in this case, the language of the answer is, that it "is loose, and has ever been loose and unfastened machinery, and that the same is not now, and never has been in any way attached to, or fixed to the said factory building, or real estate or realty embraced and described in said mortgage. The court cannot be supposed to have any judicial knowledge of the character or uses of the machinery here referred to, and hence cannot say the chancellor erred in failing to rule, on the language of the answer alone, whether or not such machinery passed under the mortgage of the realty. We speak of it as a failure of the rule, for he certainly did not decree that any part of the machinery was not covered by the mortgage. He simply declared a rule, in very general terms it is true, but nevertheless free from error.

There are cases which hold that when a building is constructed for milling or manufacturing purposes, and is so employed, all the machinery and appliances used in connection with the business, whether attached in any way to the realty or not, become part of the realty, and a mortgage simply of the land carries with it such machinery and appliances, even without any mention being made thereof. Voorhees v. McGinnis, 48 N. Y. 278; Pierce v. George, 108 Mass. 78; s. c., 11 Am. Rep. 310; Farrar v. Stackpole, i

Rogers v. Prattville Manufacturing Company.

Greenl. 154; s. c., 19 Am. Dec. 201; Parsons v. Copeland, 38 Me. 537; s. c., 54 Am. Dec. 628; Ottumwa W. Mill Co. v. Hawley, 44 Iowa, 57; s. c., 24 Am. Rep. 719; Winslow v. Mer. Ins. Co., 4 Metc. 306; s. c., 38 Am. Dec. 368; Stockwell v. Campbell, 39 Conn. 362; s. c., 12 Am. Rep. 393; Millikin v. Armstrong, 17 Ind. 456; Queen, ex rel. v. Lee, L. R., 1 Q. B. 241; Holland v. Hodgson, L. R., 7 C. P. 241; Hoskin v. Woodward, 45 Penn. St. 42.

Our own court has not gone to this extreme length. McDaniel v. Moody, 3 Stew. 314; Tillman v. De Lacy (MSS.), Ala. With us mere use in connection with a business, does not necessarily so annex machinery to the realty as to constitute it a part of it. Intention is more or less a factor in such inquiries.

Many of the adjudged cases declare the rule as follows: The criterion of a fixture applicable to a mill or manufactory, is the resultant of three requisites: First, actual annexation to the realty, or something appurtenant thereto. Second, application to the use or purpose to which that part of the realty with which it is connected is appropriated. Third, the intention of the party making the annexation, to make a permanent accession to the freehold. Teaf v. Hewitt, 1 Ohio St. 511; s. c., 59 Am. Dec. 634: 1 Jones Mort., §§ 428, 444; Quinby v. Man. Co., 24 N. J. Eq. 260; Keve v. Paxton, 26 N. J. Eq. 107; Blancke v. Rodgers, 26 N. J. Eq. 563; Capen v. Peckham, 35 Conn. 88; Brennan v. Whitaker, 15 Ohio St. 446; Cram v. Brigham, 11 N. J. Eq. 29; Hutchinson v. Kay, 23 Beav. 413.

As we have said above, the precise point at which a chattel loses its character as such, and becomes part of the realty, is difficult, if not impossible to define by any fixed rule applicable to all cases. It depends so much on the use, on the nature and extent of annexation, if any, and on the intention with which the machinery is applied, that we find ourselves without sufficient information on which to formulate a rule applicable to it. We repeat, as far as the chancellor proceeded in his decree, his ruling is free from error. The present appeal brings before us only his ruling. If the attempt were made to have us consider the register's findings and report, there are two reasons why we could not do so. First, the chancellor has not acted on the register's report. Proceedings before the register can never come immediately before us. The chancellor must first act upon them, and from his rulings only can an appeal be prosecuted to this court. But there is a second reason why the register's action in this case can never be considered,