The mere exhibition of a plan of a new street, at the time of the sale of a piece of ground to build a house in the line of the intended street, does not amount to an implied contract to execute the improvements exhibited on the plan, where the written contract is silent on that head(y).

Where the timber and other trees are to be taken by the purchaser at a valuation, it should be stated accurately for what trees he is to pay.

In a case where there were several lots, it was stated after two of them, that the timber on them was to be paid for. The particulars were silent as to the timber on the other lots, which was of considerably greater value; but there was a general condition that all the timber and timber-like trees, down to 1s. per stick inclusive, should be taken at a fair valuation. The purchaser of the lots, to which no statement was annexed, claimed the timber without paying for it; and the Master of the Rolls thought that a purchaser might be so fairly impressed with that idea, notwithstanding the general condition, (*) that he refused to compel him to perform the contract according to the seller's construction(2).

But although it should be merely stipulated that the purchaser shall pay for timber yet he must pay for trees not strictly timber, if considered so, according to the custom of the country (a).

It is proper, also, to make some provision as to articles not properly fixtures. Lord Hardwicke said, that if a man sells a house where there is a copper, or a brewhouse where there are utensils, unless there was some

(y) Feoffees of Heriott's Hospital v. Gibson, 2 Dow, 301; see Compton v. Richards, 1 Price, 27; Beaumont v. Dukes, 1Jac. 422. (z) Higginson v. Clowes, 15 Ves. jun. 516.

(a) Duke of Chandos v. Talbot, 2 P. Wms. 601; Anon. Ch. 25 July, 1808; Rabbett v. Raikes, Woodfall L. & T. 224, 6th ed; and see Aubrey v. Fisher, 10 East, 446.

consideration given for them, and a valuation set upon them, they would not pass(b). But in the absence of any stipulation, common fixtures would pass to the purchaser under the common conveyance(c)(10).

(b) Ex parte Quincey, 1 Atk. 478.

(c) Colegrave v. Dias Santos, 2 Barn. & Cress. 76; 3 Dowl. & R.

255.

(10) A kettle in a fulling mill, set in brick work, and used for dying cloth, will pass to the mortgagee in fee of the mill; though no mention of the appurtenances be made in the deed. Union Bank v. Emerson, 15 Mass. Rep. 159.

What ought to be considered a fixture depends, materially, upon the nature of the freehold sold. If a plantation, then all such things attached to the land, which are usually necessary, or used in the management of a farm would pass. If a freehold fitted up for a trade of any kind, or for manufactures, is sold to a person intending to follow the same business, then all the machinery necessary to the trade, or manufacture, so intended to be carried on, would pass. (By the Court in 1 Bailey's S. C. R. 541.) The action was trover for a cotton gin, which was attached to the gears in the gin-house; and it was held to be a fixture, which passed by the contract of sale. But in the earlier case of M'Clintock v. Graham, 3 M'Cord, 553, where the question was in respect to a still and vessels set up in a rock furnace, which was built against the wall. The claim of the purchaser was under a sheriff's sale; and the court were very clear, that it did not pass by the contract of sale. The Court, Colcock, J. observed-If it was a mere temporary thing not necessary to the enjoyment of the freehold; as between executor and heir, I should hold there was no doubt but that it must pass. But all difficulty in this case must vanish when we consider the question in relation to the parties claiming; as to them it becomes a mere question of contract. C. the first purchaser from T. says, when he bought the land, the still was excepted; and C., who sold to the defendant, says, he never heard a word about the still when he was buying, and did not consider himself as buying the still. Now, whatever rights may be acquired by those who succeed; if before they enter, the owner of the freehold himself makes a severance, there can be no room for doubt.

The case of vendor and vendee is different from that of landlord and tenant. Spencer, C. J. says in Holmes v. Tremper, 20 Johns. R. 29, "when a farm is sold without any reservation, the same rule would apply, as to the right of the vendor to remove fixtures, as exists between

When the title-deeds cannot be delivered up, some provision should be made as to the expense of the attested

the heir and executor." That rule is; whatever is affixed to the freehold becomes part of it, and cannot be removed. The vendor has the absolute control, not only of the land, but of the improvements; and he has an election to sell or not to sell. If he does sell, he knows the fixtures pass; not being in such cases personal property. These principles were recognised in Miller v. Plumb, 6 Cowen, 665, where Plumb conveyed by deed without reservation, an ashery, in which the kettles were set in mason work, but the arches were upon a platform; and not fastened to the building. The troughs were sunk in the ground. Miller, who purchased the premises demised the ashery; and the lessee entered into possession and used the kettles until a fire consumed the building. The question being as to the fixtures, held, that the fixtures passed by the conveyance; but the plaintiff recovered in trover for some small articles not annexed to the freehold.

A tenant for life, years, or at will, may at the expiration of his estate remove from the freehold all such improvements as were erected or placed there by him, the removal of which will not injure the premises or put them in a worse plight than they were in when he took possession. Therefore, in Whiting v. Brastow, 4 Pick. 310, where the plaintiff sued the defendant in trespass for entering his close and carrying away a padlock and some boards put up in the corn house for binns; but neither were in any way fastened to the building. The defendant was but a tenant at will when the plaintiff purchased the estate. The Court held, that neither the padlock nor boards could be called a fixture. If put there by the landlord, they would not be fixtures; for they were loose and moveable without injury to the freehold. So, in Taylor v. Townsend, 8 Mass. 411, it was decided that a mortgagee, after a recovery by the mortgagor on a bill in equity to redeem; and until an execution of the decree of the court, may take down any buildings erected by him, the materials of which were his own; and which were not so connected with the soil as that they could not be removed without prejudice to it. It is enough for the tenant to say, "I leave you the land as I found it." A fortiori it ought to apply to a mortgagee who has held the estate for years under a conveyance from the owner.

In Gray v. Holdship, 17 S. & R. 413. it was held, that a copper kettle or boiler, which was fastened and fixed in the building, which was used as a brewery, and an essential part of it, was subject to the mechanic's lien law. Smith, J. distinguished this case from that in 14 Mass. R. 352, in which three carding machines in a wool carding

copies, and the covenants to produce them, which will otherwise fall upon the vendor(d); and where the estate is sold in many lots, and the title-deeds are numerous, nearly the whole purchase-money may, perhaps, be exhausted. In one case, the lots were more than 200, and the copies came to 2,000l.

If the estate is leasehold, and the vendor cannot procure an abstract of the lessor's title, this fact should be stated in the conditions(e).

(d) Dare v. Tucker, 6 Ves. jun. 460; and Berry v. Young, 2 Esp. Ca. 640, n. See post. c. 9.

(e) See post. ch. 7; and see Denew v. Deverell, 3 Camp. 451.

factory, were considered as personal property. There the carding machines were not a necessary part of the factory, and essential to its operations. They stood on the floor, and were not annexed to the building, except by a leather band, which passed over the wheel or pulley, to give motion to the machines. Here, the boiler was fastened and fixed in the building. He cited the case of the Union Bank v. Emerson, supra, and that from Mason's R. 459, in which Justice Story, decided, that the main mill-wheel and gearing of a factory attached to the same and necessary for its operations, are fixtures and real estate.

If one erect buildings upon the land of another voluntarily and without any contract, he may not remove them. Thus, in Washburn et al, v. Sproat, 16 Mass. 449, where the husband erected buildings on land, the fee of which was in the wife, held, that the buildings were not lia ble for his debts; his estate being insolvent after his decease. So, in Goddard v. Bolster et al. 6 Greenl. 427, where an agent of the owner of a mill put his own mill-stones and mill-irons into the mill, so as to become a part of the freehold, held, that neither the agent, nor his creditors could seize them, though the mill had been destroyed by a flood, and they alone remained.

It seems, however, that where the owner of land consents to the erection of a dwelling for the accommodation of a son, under an expectation, that the former would devise the land to the latter at some future time, the property of the building is personal property: and "perhaps the son, or persons claiming under him by purchase or execution, may enter and remove the buildings, without being subject to any other than nominal damages in an action of trespass." Wells et al. v. Banister & Trustee, 4 Mass. 514.

A purchaser of a leasehold estate must covenant with the vendor to indemnify him against the rent and (*)covenants in the lease, although he is not expressly required to do so by the conditions of sale(f); and it will not vary the case that he is not entitled to any covenants for title; for example, where the sale is by an executor of an assignee(g); but assignees of a bankrupt selling a lease which was vested in him, cannot require the purchaser to enter into such a covenant for their indemnity or the indemnity of the bankrupt(h).

And although a purchaser is not required by the conditions of sale to give an indemnity against the rent and covenants, and an assignment is actually executed without any indemnity being given; yet, even a verbal agreement by the purchaser, before the sale, to secure such indemnity, will be carried into a specific execution, if it be distinctly proved(i).

Where a vendor is only an assignee of a leasehold estate, and is not bound by covenant to pay the rent, and perform the covenants in the lease, his liability to do so ceases upon his assigning the estate over(j), and consequently, in such case, there is not any thing for a purchaser to indemnify against. It has lately been decided that the assignee is liable to indemnify the lessee who assigned to him against breaches during the time he (the assignee) is in possession, although he has not covenanted to indemnify the lessee(k).

(f) See Pember v. Mathers, 1 Bro. C. C. 52; and see post. ch. 4, as to the obligation of a purchaser of an equity of redemption to indemnify the vendor against the mortgage-money.

(g) Staines v. Morris, 1 Ves. & Beam. 8.

(h) Wilkins v. Fry, 1 Mer. 244.

(i) Pember v. Mathers, 1 Bro. C. C. 52; and see post. ch. 3.

(j) See 1 Treat. Eq. 2d ed. p. 350, and Fonbl. n. (y) ibid.; and see Taylor v. Shum, 1 Bos. & Pull. 21.

(k) Burnett v. Lynch, 5 Barn. & Cress. 589; 8 Dowl. & R. 368.