372. A Fixture. This is a thing personal in its nature but which may become real property when annexed to, or used in connection with land, by some one having an interest therein. The annexation may be (1) actual, as in the case of buildings upon stone or brick foundations, or fences with posts in the soil, or it may be (2) constructive as in the case of keys and movable screen doors. Whether the chattel annexed is to be considered a part of the land, is determined by the manner of attachment and the nature of the chattel, as showing the presumed interest of the person annexing it. If the annexation is made in a permanent manner and by the owner of the property with the intention that it shall remain, the fixture becomes a part of the realty. If the annexation is of a temporary character and is made by one who has only a temporary interest in the realty, as a tenant under a lease, the presumption is that it was intended to be removed at the termination of such interest, and the fixture is treated as personalty. Ponderous machinery held in position only by its own weight may pass as a part of the realty. As between a mortgagor and mortgagee, or a vendor and purchaser of land, the common law and general rule is that the fixture passes to the latter in each case, as a part of the land, and is not removable. But in regard to fixtures which have been annexed by the tenant during his term the rule is different, and he is permitted to remove all fixtures annexed by him for trade, domestic or ornamental purposes, and generally agricultural fixtures. The present tendency is to allow him to remove anything which may come under one of these classes and which can be removed without permanent injury to the realty, such as stoves, looking glasses, machinery, or anything attached by screws. The common law rule favored the landowner; the modern rule relaxes in favor toward the tenant. Where the right of removal is in doubt, it is to be determined from the intention of the person annexing the chattel. Such intention is inferred from the nature of the article, the relation of the annexing party to the land, and the manner and purpose of the annexation. The proper time of removal is during the term, or before possession is surrendered, or when the

term is indefinite and is terminated without the tenant's fault, he has a reasonable time after termination in which to remove fixtures. An article which by attachment would become realty, may by agreement retain its chattel character. A fixture generally resumes its chattel character upon severance.

373. RECAPITULATION

Leaseholds are regarded as personal property. An estate for years is limited for a certain definite time, and may be created orally or by written instrument.

Covenants are written agreements fixing rights and liabilities.

Waste consists of any act of omission or commission which results in permanent injury to real property.

A tenancy at will is one that may be terminated at the will of either party.

Emblements are those products of the soil which result from the annual labor and cultivation by the person in possession.

A fixture is a chattel which, when attached to real property, either becomes realty or remains personalty, owing to the intention under which it was annexed.

Classify leaseholds. Define an estate for years. When should a lease be in writing? From what does the relation of landlord and tenant arise? What is a term? What is a lease, and what should it contain? What are the operative words of a lease?

Discuss and

Enumerate covenants ordinarily contained in leases. illustrate waste. Distinguish between assignment and a subletting. Define eviction. Enumerate and discuss the lessor's remedies.

How is an estate for years terminated? How is a tenancy at will created and terminated? Define a tenancy from year to year, and discuss the tenant's rights. Define tenancy by sufferance, and discuss the landlord's rights.

What crops are emblements and what are not? Discuss the tenant's rights to emblements. Distinguish and illustrate the difference between the actual and constructive annexation of fixtures.

"Thirty bushels of dates are due to Bel Nadin Shun, son of Marashu, by Bel Bullitsu and Sha Nabu Shu, sons of
Kirebti, and their tenants. In the month of Tisri (month of harvest), of the 34th year of King Artaxerxes I,

they shall pay the dates, thirty bushels, according to the measure of Bel Nadin Shun, in the

town of Bit Balatsu. Their field, cultivated and uncultivated, their fief estates, is

held as a pledge for the dates, namely, thirty bushels, by Bel Nadin

Shun. Another creditor shall not have power over it."

The brick tablet pictured here was found some years ago in excavating the ancient Babylonian town of Nippur. This tablet among other cuneiforms was taken from the ruins of a banking house which evidently handled mortgages and loans of all kinds. The instrument is a first mortgage as well as a trust deed and note combined, and though executed in the fourth century before the Christian era (King Artaxerxes reigned 464-424 B. C.), exhibits many of the features of our modern documents.

375. Introduction. A considerable volume of business is being transacted at all times through the medium of real estate mortgages and trust deeds. A mortgage is a conveyance of land given as security for the payment of money or other obligation. Formerly, if the debt or obligation was not discharged on the due date, or date of performance, the title to the mortgaged property became absolute in the mortgagee. Consequently it often happened that the mortgagor entirely lost valuable property through not being able to pay promptly. Later the mortgagor was given the right to redeem the property by making payment in full of principal, interest, etc. to date. This right became known as the "equity of redemption," and is very beneficial to the mortgagor who, through misfortune or otherwise, is unable to pay promptly.