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The Albany Law Journal.

in that way in “ Thanatopsis," and solaced himself as well as he could with such perishable trifles as “ The Ages,” “Lines to a Waterfowl," " Robert of

Linoln,” a translation of the Odyssey, etc., most of ALBANY, JULY 28, 1888.

the ideas coming to him, no doubt at that very cottage where we have been loafing, and always,

we have no doubt, while in a recumbent attitude. CURRENT TOPICS.

He laid himself out, so to speak, in poetry. He

probably sat up when he wrote them out, just as VACATION is upon the legal profession. Among

we are sitting now while writing these trivial ✓ us this season is generally felt to be the un

words, but the ideas came, as such ideas always happy time when we are driven to forego grubbing

must, when he was prone. Of course his editorials for money for a few weeks in order to save doctors'

were composed in a sitting posture. On those he bills later in the year. It is not a time of unalloyed

incubated. But the world's best thoughts have pleasure, but it is a measure of precaution. The

not come from incubation, but from horizontal test of a true vacation is the ability of the sufferer

inspiration. So let the worn lawyer lie down for to lie down at full length in the day tiine. At all

two or three weeks with his thoughts and a few other seasons the busy lawyer is always on end,

good novels — none of the pot-boilers of the new, either sitting or standing. Therefore to attain the

superficial, and ephemeral school, but the great healthiest results of vacation the discreet lawyer

creators of fiction who may be reread forever, such will seek recreation based on recumbency. If he is

as Fielding, Scott, Dickens, Thackeray, Eliot, a wise man he will swing in a hammock, or lie

Hawthorne, Kingsley's “Hypatia,” Blackmore's under a tree, or best of all, lie on the fo'cas'le of a

“Lorna Doone." Above all, eschew all newspabounding yacht. None but idiots take pedestrian

pers, especially in the presidential canvass. If the tours and break themselves down with much and

patient is wakeful, we should prescribe a few pages weary walking. With due deference to certain

of the Rev. E. P. Roe or Mr. Anthony Trollope. great judges, we do not approve of sitting on

So let him lie in sight of the ocean, if not on it, slivery boards and watching base-ball games till we

leaving word, like Choate on his death-bed, to be ache. Nor of sitting starched-up at whist tables

awakened if a square-rigged vessel goes by, all the summer evenings. Nor of riding on horse

No din of the city's heartless trade,

No stare of the cruel street, back and being laid low by wires. The law itself

No duns nor disease to make him afraid, needs to be laid down. Depend upon it, recum

Where cringing and selfishness meet. bency is the true thing. Otherwise, how is it that

Within his broad window.ledge let him lie, the weary lawyer continually yearns to get his feet

Let him dream till the daylight fails; on a level with his knees, or still better, with his

Let the busy, ambitious world go by,

Go by with the shining sails. head? You never see bad men lying down. They are always roaming uneasily about, or standing at the street corners. The best thoughts come in There have been some recent quotations in these recumbency; the most capital ideas are born when | columns from remarks made by Mr. Justice Kekethe spinal column is laid horizontal. Michael An- wich on text-books as authority in courts. In the gelo did his greatest frescoes lying on his back. July number of the Law Quarterly Review is a comWas not Newton lying under the tree when he oh-munication from Boston on this subject, stating served the fall of the apple? So was Cowper's that on a recent argument in the Massachusetts Atheist when the acorn fell on his eve. (Nothing | Supreme Court, of which Judge Holmes is a memless than a pumpkin however would convert Bob ber, counsel cited his work on the Common Law as Ingersoll.) Laziness is what we should cultivate an authority, and that in writing the opinion of the feeling that we don't care whether school keeps the court Judge Holmes allowed himself to agree or not, we are going a-fishing. And we always with that eminent authority. Now we must procatch the most fish when we are most nearly lying test that counsel's course was extremely indelicate. down. Izaak Walton would never have written not to say impudent. It looked like a challenge to "The Compleat Angler" if he had been a peri- | the learned judge to hold differently if he dared. patetic angler. He lay still, and his sweet thoughts

Judge William F. Allen was very severely blamed and the fislı came to him without his perspiring or for quoting in his opinion in the great Tweed case muddying his feet. This line of reflection was in our Court of Appeals, on the subject of cumulaborne in upon us as we swung in a hammock or tive sentences, from a former brief of Mr. O'Connor. otherwise lounged at Roslyn, the favorite retreat of

a. the favorite retreat of the counsel in that case, to substantiate the judge's an unsuccessful lawyer. driven from the profession decision against the counsel's own argument. It by his lamentable inability to draw a proper dec. proved a most effectual seething of the kid in its laration in an action for libel. (See Blos8 v. Tobey, | mother's milk. There never was a more utter rout2 Pick. 320.) The record shows that he desecrated | ing of eminent counsel on a point of precedent and Vacation by furnishing the court therein with a historical research, and that was what made the written argument. But in vain. So he took to eminent counsel and his admirers so angry. It writing verses, having had a little previous success I would have been hard indeed on the eminent Judge

Vol. 38 -- No. 4.

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Holmes to be forced to disagree with Mr. Holmes, pages 79 and 332); reports of standing committees
the learned commentator, and it must have been a (see list of subjects referred in report of 1887, page
strain on his modesty to be compelled to write an 438); report of special committee on the Expres-
opinion agreeing with him. It was scarcely fair in sion of Legislative Intention in Public Statutes,"
his brethren to assign that duty to him, and he Johnson T. Platt, chairman. Thursday evening.-
might reasonably have declined it. But he is not | The following unfinished business from
the man to shirk an unpleasant duty, and undoubt Discussion and action upon the report of the com-
edly no other man in this country is more likely to mittee on judicial administration and remedial pro-
be right on a point of ancient common law. The cedure, on the subject of uniformity of pleading
editor of the Review says, in brackets, “the relative and practice in United States courts (see report of
weight of text-books, as compared with decisions, 1887, pages 52 and 317); discussion and action
is no doubt much greater in the United States than upon the report of the committee on jurisprudence
here.” This is probably because our text-books are and law reform, on the subject of a Federal code of
so much better than theirs.

procedure (see report of 1887, pages 52 and 317);
discussion on the subject of the paper read this

evening. Friday morning.- Nomination of offi-
A group of cases worthy of remark by Gibson's cers; unfinished business; miscellaneous business;
Law Notes reaches us in the last batch of exchanges. election of officers. The annual dinner will be
In Delaware, etc., R. Co. v. Cadou, it was held neg- / given at the Grand Union Hotel at 8.30 o'clock on
ligent for a cripple with a stiff leg to depart from a Friday evening.
path which he knows to be safe, and take one
which he does not know, to reach the same point The State Library will be closed to the public
across a street. We should suppose it would be a from the 5th to the 20th of August, inclusive, for
fair question of fact. Vermont is a great State for the purpose of cleaning.
dog suits. In Worthen v. Love it is held that proof
that a dog, whose owner knew he was vicious, had
previously broken his chain and bitten a child, was

NOTES OF CASES. competent to show that the defendant did not keep him securely fastened. In Mass v. Marshall (Penn.) | In lleuston v. Simpson, Indiana Supreme Court, it was held that a witness was not competent to 1 May 29, 1888, it was held that even in a will testify as to the purity of whisky simply by reason I case, under a statute which forbids physicians to of having been an attorney at law for forty years

testify as to matter communicated to them as such and studied chemistry to some extent. In John

by patients in the course of their professional duson v. Commonwealth (Penn.) it was held that an

| ties, a physician is not a competent witness to prove offigy, bearing the words " by George, the old liar," the mental and physical condition of his patient, hung on a tree in front of the complainant's place whether his knowledge thereof was derived from of business, and understood to represent him, was a

words of the patient, his own observation, or his criminal libel.

professional examination. The court said: “In

Association v. Beck, 77 Ind. 203, the court quoted The eleventh annual meeting of the American with approval from the case of Edington v. Insur Bar Association will be held at Saratoga Springs on ance Co., 5 Hun, 1, this language: The secrets of Wednesday, Thursday and Friday, August 15, 16 the sick-chamber cannot be revealed because the and 17, 1888. The sessions will be held at 10 patient was too sick to talk, or was temporarily deo'clock A. M. and 8 P. M. on Wednesday and Thurs- prived of his faculties by delerium or fever, or any day, and at 10 o'clock A. M. on Friday, at Putnam's other disease, or because the physician asked no Music Hall, at the corner of Broadway and Phila questions. The statute seals the lips of the physistreet, nearly opposite the United States Hotel. | cian against divulging in a court of justice the inWednesday morning. The president's address, by telligence which he acquired in the necessary disGeorge G. Wright, of Iowa; nomination and elec- charge of his professional duty.' The last sentence tion of members; election of the general council; 1 in the extract we have made from Edington v, Inreports of the secretary and treasurer; report of the surance Co., supra, correctly declares the law. If executive committee. Wednesday evening. -- A the knowledge is acquired in the chamber of the paper by J. Randolph Tucker, of Virginia, on patient, and in the discharge of professional duty, “ Congressional Power over Inter-State Commerce; ". the physician can make no disclosure. This is a paper by J. M. Woolworth, of Nebraska, on true whether the knowledge is communicated by 6 Jurisprudence considered as a branch of the So- | the words of the patient, or is gained by observacial Science; " discussion upon the subjects of the tion, or is the result of a professional examination. papers read. Thursday morning. The annual ad- | The law forbids the physician from disclosing what dress, by George Iloadly, of New York; discussion | he learns in the sick-room, no matter by what and action on the report of the committee on com- | methods he acquires his knowledge. Association v. mercial law made last year, on the subject of the | Beck, supra; Association v. Riddle, 91 Ind. 84; Inadoption by Congress of laws about commercial / surance Co. v. Wiler, 100 id. 92; Turnpike Co v. Anpaper and on other subjects (see report of 1887, I dreros, 102 id. 138; Williams v, Johnson, 112 id. 273;

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Rap. Wit., § 272. The rule we have stated is a in Green v. Cresswell, supra, if there had been no general one, for the statute makes no exceptions. I decisions on the subject it would appear impossible It is a rule that may be invoked by the representa- / to make a reasonable doubt that this is answering tives of the deceased patient. It must therefore for the default of another.' But it is said by some apply to this case, unless the court legislates, and of the text writers, and such is the position taken by legislation creates an exception. That we can- | by the defendant in error in this case, that whennot do. The case before us is within the rule, and ever the promisor is a surety also, and therefore anmust be decided as the rule requires. The question swerable for the default of the principal independcame before the court in Renihan v. Dennin, 103 | ently of his promise, the law is otherwise; and that N. Y. 573; S. C., 57 Am. Rep. 770, as it comes be- any engagement which he may make that it shall fore us, in an action to set aside a will, and it was be paid, or that the surety shall not be compelled held, all judges concurring, that the testimony was to pay it, must be regarded as contracted on his incompetent." See Groll v. Tower, 85 Mo. 249; own behalf, and not for the default of the principal. S. C., 55 Am. Rep. 358.

But we do not think that there is any real foundation for any such distinction, and certainly none

such is sanctioned by the leading cases of Thomas In Wolverton v. Davis, Virginia Supreme Court | v. Cook, 8 Barn. & C. 728, and Green v. Cresswell, 10 of Appeals, May 24, 1888, it was held that a prom Ad. & E. 453; although in the last mentioned case ise by one of the sureties on an official bond to in- it was brought to the attention of the court by demnify a co-surety, who became such at the re- | counsel in the course of the argument that in quest of the promisor, comes within the provision Thomas v. Cook the defendant was liable upon the of the statute of frauds which requires a promise to bond, independently of the promise upon wbich he answer for the debts etc., of another to be in writ. I was sued. The fact is, that while in the large maing. The court said: “A more difficult question jority of the cases where the promisor was also a for judicial decision, if the mere weight of author- surety, the promise has been held not to be within ity be looked at, can scarcely be imagined; for in the statute, that circumstance does not appear to England, even at this day, and notwithstanding the l have been relied upon as the ground of decision. decision of Vice-Chancellor Malins in Willes v. / The true question to be determined in every such Dudloro, 23 W. Rep. 435, the authorities cannot be case is, as announced by the Supreme Court of reconciled, and in America the authorities would Missouri in Bissig v. Britton, supra, whether the seem to be about evenly balanced, there being the promise amounts to an original undertaking and is decision of .cight States (see 3 South. Law Rev. | supported by a direct consideration, or is collateral 444) at one end of the scale to weigh against eight in its character and depends upon some act to be at the other.' And see also on this subject Throop admitted or performed by some third person. Verb. Agr. 459 et seq., where all the cases are re- | Draughan v. Bunting, 9 Ired. 10; 1 Wms. Saund. viewed. It is believed however that no matter | 211c. Applying this test to the case in hand, it what may be the law, where the promisor is also a seems to us clear that the promise of indemnity surety --a point to be presently discussed - the made by the defendant is within the statute and result of the authorities as a whole is as stated by not capable of enforcement." Compare May v. Wilthe learned editor of Smith's Leading Cases in his liams, 61 Miss. 125; S. C., 48 Am. Rep. 80. See notes to Birkmur v. Darnell, volume 1, page 326, | Douo v. Swett, 134 Mass. 140; S. C., 45 Am. Rep. that a promise by a stranger to the debt to indem- | 410; Anderson v. Spence, 72 Ind. 315; S. C., 37 Am. nify a surety is prima facie within the statute, be- | Rep. 162; Bissig v. Britton, 59 Mo. 204; S. C., 21 cause the principal is bound by an implied obliga- | Am. Rep. 379; Nugent v. Wolfe, 111 Penn, St. 471: tion to do that which the promisor agrees to do ex- | S. C., 56 Am. Rep. 291. In this State the law is pressly, and the promise is therefore really to an- | settled contrary to the principal case, in Barry v. swer for default of the principal. 1 Smith Lead. | Bancour, 12 N. Y. 463. Cas. (8th Am. ed.), pt. 1, 538; Green v. Cressicell, 10 Ad. & E. 453; Cripps v. Hartnoll, 31 L. J., Q. B., 150; Kingsley v. Balcome, 4 Barb. 131; Baker v. 1 In Pfeferle v. Lyon County, Kansas Supreme Dillman, 12 Abb. Pr. 313; Easter v. White, 12 Ohio | Court, June 9, 1888, it was held that a county is St. 219; Kelsey v. Ilibbs, 13 id. 340; Broun v. Adams, not liable to the inmates of its county jail for neg1 Stew. 51; Brush v. Carpenter', 6 Ind. 78; Draug- ligently permitting such jail to become and remain hun v. Bunting, 9 Ired. 10; Simpson v. Nance, 1 in such a bad condition that the inmates become Speer, 4; Bissig v. Britton, 59 Mo. 204. And cer- | sick. The court said: “The plaintiff claims that a tainly, upon the reason of the thing, this must be county is liable in such a case, and cites the followso, for not only does such a case fall within the ing cases as authority therefor: Bigeloro v. Inhabimischief intended to be remedied by the statute, tants of Randolph, 14 Gray, 541; Aldrich v. Trimp, but it is within the words also. The promise, in | 11 R. I. 141; S. C., 23 Am, Rep. 434; Joulton v. substance and effect, is this: "If you will become Inhabitants of Scarborough, 71 Me. 207; S. C., 36 bound as surety for this sheriff, I will save you | Am. Rep. 308; llannon v. County of St. Louis, 62 harmless from the consequences of your suretyship.' Mo. 313. We do not think that any of these cases And to use the vigorous language of Lord Denman | go to the extent that is claimed for them by the

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plaintiff; but even if they did we would hardly fol. 450; S. C., 43 Am. Rep. 120. See also Manwaring v. low them, for the overwhelming current of author

Jenison (Mich.), 27 N. W. Rep. 899. ity would still be against any such doctrine. Of

Whether the coustructive notice given by the filing

of a chattel mortgage on the property which retains course where the statutes provide that a county

its original character of personalty under the agreeshall be liable, it will be liable; and also for the ment, will suffice to defeat the claim of an otherwise purposes of this case we shall assume that when innocent purchaser or mortgagee, is in a hopeless state ever a county is authorized to engage in business of of confusion so far as the authorities are concerned. any kind similar to that which may be carried on

In Ohio the filing of the chattel mortgage will not pro

tect the mortgagee against a purchaser or incumby private individuals or private corporations, the

brancer of the realty without actual notice, In Case county will be liable to the same extent and in the Manuf. Co. v. Graves, 13 N. E. Rep. 493, the Mansfield same manner as such private individuals or private Machine Works furnished ove Patton with motive corporations would be. But none of these cases is power for his mill. The property furnished consisted the present case. It is true that counties are, to a

of an engine and boiler with the usual attachments.

The agreement between the parties provided that the limited extent, corporations; but they are not pri

title should not pass till the property had been paid vate corporations, and they are not, in a strict for. After the annexation had been made, Patton sense, municipal corporations. They are usually executed a chattel mortgage upon the property to se. denominated quasi corporations, and their principal cure the purchase price, and this mortgage was duly functions are governmental and political, and not

| filed in the proper office. Subsequently two mort.

gages upon the real estate were executed by Patton private or of a strictly corporate character. Coun

and one Collins, to whom he had conveyed an uudities are principally mere political subdivisions of

vided interest in the real property. These mortgages the State -- mere instrumentalities of the State gov were taken for value in good faith, and without any ernment, brought into existence merely for the pur other notice of the cbattel mortgage than tbat afforded pose of aiding and assisting the State in promoting

by the filing thereof. The court held tbat the real estate

mortgages were liens on the boiler, engine, etc., prior justice, in preserving peace, quiet and good order

to the lien of the chattel mortgage. The court, after in the State, and of promoting the welfare and hap

referring to a prior decision in Brennan v. Whitaker, piness of the citizens thereof; and these objects are

say: “The fact that the machine works took a chattel the ones which counties are designed to subserve mortgage upon the engine and boiler in addition to when they are authorized to build, own and keep

the stipulation as to the title does not seem to help its county jails. The objects do not partake at all of

case. It caused the property to be annexed to the

realty in such a manner that but for the agreement a private character, and they are not engaged in as

it would bave become a part of it. The subsequent business transactions, nor for the purpose of in mortgagees of the realty had no notice of the agreecreasing the wealth of the county as an organiza ment or of the chattel mortgage. And to use the lantion. No decision can be found, so far as we are guage of White, J., in the case above cited, it then deinformed, where any county has ever been held to

volved upon the vendor, if it ‘sought to change the

legal character of the property and create incum. be liable for any negligence in keeping or maintain.

brances upon it, either to pursue the mode prescribed ing a county jail." See Stuart v. Supervisors, 83 III.

by law for incumbering the kind of estate to which it 341; S. C., 25 Am. Rep. 397.

appeared to the world to belong, and for giving notice
of such incumbrance, or otherwise take the risk of its
loss in case it should be sold and couveyed as a part of

the real estate to a purchaser without notice.'And RIGHT OF INNOCENT PURCHASER OF LAND

the court concluded by stating that to give effect to TO APPARENT BUT NOT REAL FIX the filing of the chattel mortgage, as potice would be TURES.

against the policy of the registration laws of the State.

In the case of Brennan v. Whitaker, 15 Ohio St. 446,

the same question arose under the same circumstances. DERSONAL property is frequently attached to real The court said: “The right given to the plaintiffs by T estate in such a manner as would make it a por the mortgage to enter upon the premises and sever the tion of the realty in the absence of any agreement to property, would doubtless have been effectual as bethe contrary, and yet by agreement between the | tween the parties. But the defendants were purchasowner of the real property and a third person the ers without notice of this agreement. The filing of chattel retains its original character. As between chattel mortgages is made constructive notice only of the parties to the transaction there can be no | incumbrances upon goods and chattels. The defenddifficulty in determining their rights. But where the ants purchased and took a conveyance of real estate, rights of innocent purchasers or mortgagees of the of whlch the property now in question was, in law, a real property are concerned, the adjudications estab- part; and in our opinion it devolved upon the plainlish any thing but a harmonious system. Unless how- tiffs who sought to change the legal character of the ever there is some kind of notice, actual or construc- property and create incumbrances upon it, either to tive, of the arrangement, under which the personal pursue the mode prescribed by law for incumbering property, in spite of its amnexation, remains a mere the kind of estate to which it appeared to the world to chattel, the cases seem to agree that the innocent pur belong and for giving notice of such incumbravce; or chaser is protected. He has a right to assume that all otherwise take the risk of its loss in case it should be that appears to be a portion of the real property | sold and conveyed as part of the real estate to a purwhich he is purchasing is in fact a part of it. Case cbaser without notice." Manuf. Co. v. Graves (Ohio), 13 N. E. Rep. 493; Fort. These cases seem to stand alone. An examination man v. Goepper, 14 Ohio St. 558; Brennan v. Whitaker, of the decisions which appear to hold the same, are all 15 id. 446; Ridgeway Stove Co. v. Way (Mass.), 6 N. E. cases in which the question of the effect of the filing Rep. 714; Southbridge Sav. Bk. V. Exeter Machine of it chattel mortgage as constructive notice was not Works, 127 Mass. 51?; Stillman v. Flenniken, 58 Iowa, I involved. Reference will be made to them hereafter.

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Holding that such filing is equivalent to actual notice gage. Whether such an incumbrancer could be held to are Sword v. Low (111.), 13 N. E. Rep. 826; Ford v. occupy the same position as bona fide purchaser for Cobb, 20 N. Y. 344; Eaves v. Estes, 10 Kang. 314; Low value, in case he furnished the materials and perden v. Craig, 26 Iowa, 162; Godard v. Gould, 14 Barb. formed the work, relying on the belief induced by the 662. See Crippen y, Morrison, 13 Mich. 23; Sheldon v. annexation of the chattel to the land, that it was a Elecards, 35 N. Y. 279,

part of the land, was not decided. The court, speakIn Sword v. Low an engine and boiler were so at ing of the filing of the chattel mortgage, said that tached to the realty that but for the understanding to "the notice imparted by the due and proper record of the contrary, they would have constituted a part of it. such an instrument, though called a constructive noA chattel mortgage was executed upon the property tice, is just as effectual for the protection of the to secure the purchase price, and this mortgage was rights of the parties as an actual notice by the word of duly filed. Sword, the subsequent purchaser of the mouth or otherwise. Any other construction of our land to which the property bad been attached, | registry laws would effectually nullify them." claimed the property attached as part of the realty on In Eaves v. Estes the same question arose between the ground that he was a bona fide purchaser without the chattel mortgagee and the purchaser of the realty notice, and had a right to assume that every thing without notice, and was decided in the same way. which seemed to be a part of the real estate was in The property covered by the chattel mortgage was an fact a part thereof, and that the filing of the chattel engine put into a mill and used as a motive power. It mortgage was no notice to him at all. The court sus was so attached to the realty that it would, in the abtained the lien of the chattel mortgage as against the sence of the agreement to the contrary, have been a purchaser, saying: “The courts are not harmonious fixture. The court said: “ But when we consider the in their holdings in respect to whether the rule that purpose of the parties as eyluced by the mortgage to the parties may retain the personal character of chat make the engine retain the character of a chattel retels annexed to the realty by express agreement, gardless of its attachment to the mill, and as the mortwould obtain as against a subsequent grantee or in: | gage violated no principle of law, wrought po injury cumbrancer of the free hold to which the chattels are to the rights of others, and was in the interest of affixed without notice of such agreement of the par- | trade, we have no doubt that the engine continued to ties. Without further examination of the authori. be personal property.” ties, it will be seen, from what has been already said, In New York we find the same rule supported by all that many cases, and as said by Mr. Tyler in his work the cases. In fact some of them, as we shall see, go on Fixtures, the majority of the cases, perhaps do not further. In Ford r. Cobb salt kettles were bought and regard the want of such notice as controlling in cases | mortgaged by the purchaser as personalty. It was unof this sort. The later authorities have relaxed the derstood between the parties that they were to be rule, and have done so in consideration of the public affixed to the realty in the manner in which they convenience and in the interest of trade and com were subsequently annexed to it. The court held merce. And while it may be objected that under this that but for the chattel mortgage the salt kettles ruling the examination of the title to realty will neces would have become real property by reason of the sarily iuvolve the examination of the chattel mort manner in which they were attached to the realty. gage record to determine whether articles, apparently This chattel mortgago was duly filed, and the lien attached to the soil as permanent fixtures, are subject thereby created was held to be good as against an into liens as personalty, we can see no hardship in hold nocent purchaser of the realty who had 10 Botice of ing that as to articles which necessarily retain their the mortgage other than that which the filing gave individual characteristics after being aunexed to the him. The court decided that he had constructive nosoil, and which may or may not be fixtures, and I tice of the lien and therefore of the arrangement that which it is apparent may be removed without mate. ! the kettles should remain personalty, saying: “Icon. rial injury to the freehold, that the purchaser or in- clude therefore that the defendants were entitled as cambrancer of the realty is required to take notice of against O. W. Titus to detach the kettles from the arch what is apparent upon the public record. It will not and take them away, after default had been made in be questioned that he would be required to take notice the payment of the purchase price, and the only of judgment liens, although not apparent upon the remaining question is whether the plaintiff is in any land record; so also of tax liens, although the same better position than that which Titus occupied. The are not apparent upon the land record nor kept in the kettles were originally personal property. The agreeottice of the recorder of deeds. Here the character of ment contained in the chattel mortgage preserved the property was such that before it could be put to their character as personalty, which would otherwise use it must necessarily be placed upon and so attached have been lost by their amexation. They therefore to the land as that it might and would, if so intended, | continued to be personal chattels Hotwithstanding the become a fixture. Here the parties had done every annexation, and the plaintiff's, by filing the mortgage, thing in their power by a compliance with the statutes observed all the formalities required by law to preserve of the Stato to preserve the lien. If the lien may not their lien repon thuat kind of property. The title to the thus be preserved, no one could buy on time property kettles did not therefore pass by the conveyances to which may become a fixture and secure the purchase the plaintiff. Those conveyances embraced only the money by a chattel mortgage thereon, for so 8001 as interest which the grantors had a right to dispose of, it is put into use the lien of the mortgage would be ex- | including any advantage which would accrue to the tinguished. We are of opinion in this case that the grantee by the laches of the former owners in giving chattel character of the property was preserved, and the constructive notice which the law required to be that by virtue of the real estate mortgage of Septem- | given; but I do not see that any such laches occurred. ber 8, 1881, 110 lien was created upon the engine and

This seems to me the true state of the case on princiboiler in question as against the chattel mortgage ple." See Burrill y. Wilcox Lumber Co. (Mich.), 3:2 N. thereon."

W. Rep. 824. The case of Lowden v. Craig goes to the same extent 1 The New York cases in fact go further and hold 80 far as the language of the court is concerned, but that the question of notice is not involved. If the the person against whom the filing of the chattel | thing as between the parties was a chattel, the grantee mortgage was held good was not a purchaser without | or mortgagee takes subject to the rights of others in notice, but bad obtained a mechanics' lien on the the chattel, although it is apparently a part of the reproperty without actual notice of the chattel mort- | alty. Godard v. Gould, 14 Barb. 662; Mott v. Palmer,

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