ANNOTATIONS. Sec. 171. Fixtures defined. Fixtures are those things, personal in their nature, which become realty by reason of their annexation to that which is realty, Tiedeman on Real Prop., sec. 3. There is no safe and well-defined rule by which the legal character of such property can always be determined. It often depends as much on the relation and intention of the parties as on the manner of the annexation of the fixture. The real or constructive annexation of the thing to the freehold; the relation to the parties; the character of the article; its use in connection with the real estate; are all important tests. The application of the thing to the use to which the realty is appropriated is also an important test. Sword v. Low, 122 Ill. 487 (13 N. E. Rep. 826); Binkley v. Forkner et al., 117 Ind. 176 (19 N. E. Rep. 753); Johnson's Executor v. Wiseman's Executor, 4 Met. 357 (83 Am. Dec. 475); Teaff v. Hewitt, 1 O. St. 511 (59 Am. Dec. 634); Atchison, T. & S. F. R. R. Co. v. Morgan, 42 Kan. 23 (16 Am. St. Rep. 471;21 Pac. Rep. 809; 22 Pac. Rep. 995). In this last case it was held that a pump and boiler, placed by the railroad company, by mistake on land of another, was not a fixture. The court say: "In the statement of facts it is agreed that the boiler was placed on the ground upon a cast-iron base; was not set in masonry; and was connected with the pump by a steam pipe for the purpose of furnishing steam from the boiler to operate the pump, and thereby carry water to the tank. This of itself does not necessarily show such a physical attachment to the realty as constitutes a fixture. Hendy v. Dinkerhoff, 57 Cal. 3; Towne v. Fiske, 127 Mass. 125; Kimball v. Grand Lodge, etc., 131 Id. 139; Balliett v. Humphreys, 78 Ind. 388; Hoyle v. P. & M. R. R. Co., 51 Barb. 45." Where a chattel mortgage conveyed an elevator, with the fixtures thereto belonging, it was held that a track scale used in connection with it was a fixture within the meaning of the mortgage and passed to the mortgagee. McGorrisk v. Dwyer, 78 Iowa 279 (43 N. W. Rep. 215). The common-law rule, that whatever is affixed to the freehold becomes a part of it and passes with it, applies strictly between executor and heir; less strictly between the executor of a tenant for life and the remainder-man; and still less as between landlord and tenant. Overman v. Sasser et al., 107 N. C. 432. A house built upon the land of another without permission, becomes a part of the realty, Harmon v. Kline, 52 Ark. 251 (12 S. W. Rep. 496); but where there is an agreement, between the land-owner and the person building the house, that the same may be removed, it will be treated as a chattel. Handforth v. Jackson, 150 Mass. 149 (22 N. E. Rep. 634). Sec. 172. Machinery and other things treated as fixtures. The authorities are not harmonious as to when a given thing should even under the same circumstances, be treated as a fixture. After referring to a large number of cases, the Supreme Court of Indiana held that machinery put into a mill, by one not the owner, became a fixture and passed under the mortgage then on the realty. Hamilton et al.v. Huntley et al. 78 Ind. 521 (41 Am. Rep. 593). This rule is supported by Southbridge Sav. Bank v. Mason, 147 Mass. 500 (18 N. E. Rep. 407); Bass Foundry and Machine Works v. Gallentine, 99 Ind. 525; Case Mfg. Co. v. Garven, 45 O. St. 289 (13 N. E. Rep. 493); Bowen et al. v. Wood, 35 Ind. 274; Brennan v. Whitaker et al, 15 O. St. 451. A carding machine in a building but not fastened to the floor, was held to be a fixture, Taffe v. Warnick, 3 Blackf. 111; so were portable furnaces in a house, Ridgeway Stove Co. v. Way, 141 Mass. 557 (6 N. E. Rep. 714); gas and water pipes, Smyth v. Sturges, 108 N. Y. 495 (15 N. E. Rep. 544); rails in a fence, Ricketts v. Dorrel, 55 Ind. 470; Seymour v. Watson, 5 Blackf. 556 (36 Am. Dec. 556); furniture built into a house, 42 Am. Rep. 449, note. It has been held that machinery which is not a permanent improvement to the building is not a fixture, Carpenter v. Walker, 140 Mass. 416 (5 N. E. Rep. 162); gas fixtures, mirrors screwed to the wall etc. have been held not to be fixtures, Guthrie v. Jones, 108 Mass. 191; Smith v. Commonwealth 14 Bush (Ky.) 31 (29 Am. Rep. 402 note); Mc Connel v. Blood, 123 Mass. 47 (25 Am. Rep. 12); McKeage v. Hanover Fire Ins. Co. 81 N. Y. 33 (37 Am. Rep. 471). Machinery which supplies the motive power is more usually held to be a fixture, Case Mfg. Co. v. Garven, 45 O. St. 289 (13 N. E. Rep. 493). Machinery adapted to use in any building does not necessarily become a fixture by being fastened in a building, Maguire v. Park, 140 Mass. 21 (1 N. E. Rep. 750). Saw and grist mills have been held not to be fixtures, Price v. Malott, 85 Ind. 266; Young v. Baxter 55 Ind. 188; State ex rel v. Bonham et al. 18 Ind. 231; so have boilers and engines, Carpenter v. Walker, 140 Mass. 416 (5 N. E. Rep. 160); Long v. Cockern et al, 127 Ill. 637 (21 N. E. Rep. 201); and also ice houses, Handforth v. Jackson, 150 Mass. 149 (22 N. E. Rep. 634). Sec. 173. Vendor and vendee. As between the vendor and the vendee it is held that a boiler and engine placed in a shed outside of the main building and used to operate a saw-mill, was a fixture. The court say: "The witness for plaintiff had testified that the shelter over engine and boiler was 'planked up on each side and length, and planked up and down, open for belt to pass to work in the house; house covered with boards two feet long, nailed on,' and that saw-mill was put down in usual manner. It was impossible for purchaser of such property to remove it without disturbing the freehold by tearing up the soil, or removing in part, at least, the building erected over the engine and boiler, and becoming a trespasser. The authorities are uniform that property, such as above, affixed and used as described by plaintiff's witnesses, as well as by defendants, were fixtures. Latham v. Blakely, 70 N. C. 368; Bond v. Pea, 35 Ind. 387; Van Ness v. Packard, 2 Pet. 137; Bryan v. Lawrence, 5 Jones 337; certainly as between vendor and vendee, McCreary v. Osborne, 9 Cal. 119; Tyler on Fixtures, 519." Horne v. Smith, 105 N. C. 322 (11 S. E. Rep. 373; 18 Am. St. Rep. 903). Sec. 174. Landlord and Tenant. The general rule, that whatever is affixed to the land passes with it, will prevail between landlord and tenant, unless the circumstances are such as to create an exception. An exception exists in the case of buildings erected for the purposes of trade or out-buildings not attached to the soil, but not where the buildings are erected for dwellings or with a view of adding to the yearly income. In determining what is a fixture, as between landlord and tenant, more depends upon the relation of the parties and the intention with which the buildings are erected, and the use to which they are put, than upon the mode of attachment to the soil. Demby v. Parse, 53 Ark. 526 (14 S. W. Rep. 899). Where the fixtures, placed by a tenant upon leased premises, are such as he has a right to remove, his right to remove the same will continue as long as he remains in possession. Lewis v. O. N. P. Co., 125 N. Y. 341 (26 N. E. Rep. 301). Under the stat utes of California the tenant has no right to remove fixtures, unless there is a contract or the fixtures are such as not to partake of the realty. West Coast Lumber Co. v. Apfield, 86 Cal. 335. Sec. 175. Mortgagor and Mortgagee. In order that the mortgagee of realty may recover chattels as fixtures placed thereon, he must show that the chattels were actually annexed to the freehold or something appurtenant thereto; that they were applied to the use or purpose to which that portion of the realty was applied; and that they were annexed with the intention of making a permanent accession to the freehold. Speiden v. Parker, 46 N. J. Eq. 292; Vail v. Weaver, 132 Pa. St. 363 (19 Am. St. Rep. 598; 19 Atl. Rep. 138). But it is held that a frame building, erected after the execution of the mortgage, resting on wooden blocks laid on the ground, designed as a temporary office to be used in connection with a mill, and intended by the mortgagor to be removed, is a fixture and passes to the mortgagee, State Savings Bank v. Kircheval, 65 Mo. 682 (27 Am. Rep. 310); and where vises, lathes, pulleys, belts, and shafting are put into a foundry, to be used permanently therein and to enhance its value, they become fixtures and pass to the mortgagee. Foote v Gooch, 96 N. C. 265 (60 Am. Rep. 411); Jones v. Detroit Chair Co., 38 Mich. 92 (31 Am. Rep. 314); Pierce v. George, 108 Mass. 78 (11 Am. Rep. 310); Ottumwa Woolen Mills Co. v. Hawley, 44 Iowa 57 (24 Am. Rep. 719). Where a chattel mortgage has been placed upon machinery, to secure the purchase money, wherein it has been stipulated that the title shall not pass until the same is paid and the machinery is subsequently placed upon the mortgaged real estate, it was held that such machinery continued personal property until the purchase price was paid. Tifft v. Horton, 53 N. Y. 377 (13 Am. Rep. 537); Eaves v. Estes, 10 Kans. 314 (15 Am. Rep. 345). As between the mortgagor and mortgagee, additional machinery in the nature of fixtures, placed in the building after the execution of the mortgage, becomes a part of the realty and cannot be disposed of by the mortgagor while the mortgage is in force. Winslow v. Merchants' Insurance Co., 4 Met. 306 (38 Am. Dec. 368). FORCIBLE ENTRY. MOSSELLER V. DEAVER. (106 N. C. 494.) Forcible entry. One who is peaceably, though unlawfully, in possession of the land of another may maintain an action of trespass for damages against the owner who forcibly enters and ejects him from the premises. SHEPHERD, J. son. Sec. 176. Facts stated. The plaintiff has been in possession of the strip of land in controversy from 1884 to March, 1888. Whether he entered under the defendant Wilson, the owner, and terms under which he entered, are disputed questions. It is admitted, however, that in March, 1887, Wilson, after giving the plaintiff notice to quit, agreed that he should remain upon the land until the succeeding October. The plaintiff continued in possession until March, 1888, when, without any further notice, he was forcibly ejected by the feme defendant Deauer, a negro, who was acting under the direction and authority of the said WilThe entry was made while the plaintiff was in the actual possession of his house, and in his presence, and was done under such circumstances as to constitute a forcible entry under the statute, if not indeed an indictable forcible trespass. His Honor charged the jury that if the plaintiff was not the tenant of Wilson, the latter, and those acting under him, "had the right to go there and put him out by force, if no more force was used than was necessary for that purpose. Under the circumstances of this case (the plaintiff not being a recent trespasser or intruder) we cannot approve of the instruction given, as it is not only opposed to the public policy, which requires the owner to use peaceful means or resort to the Courts in order to regain his possession, but is directed, contrary to a statute which condemns the violent act as a criminal offence. Sec. 177. Forcible entry-Trespass for damages. In Dustin v. Cowdry, 23 Vt. 631, Redfield J., said: "We entertain no doubt that such a principle of law * did * exist in England from the time of the Norman Conqueror until the Statute of 5, of Richard II, ch. 8, of Forcible Entry and De |