
    Bishop against Bishop.
    Poles, used necessarily in cultivating hops, which were taken down for the purpose of gathering the crop, and piled in the yard with the intention of being replaced in the season of hop-raising, are a part of the real estate.
    Action upon a note executed by the defendant to the plaintiff. The defendant in his answer alleged, that in 1844, Lyman Bishop executed to one Blackman, a mortgage upon his farm, and subsequently planted upon it a hop-yard, in which the hop poles thereinafter mentioned were used. That in 1849, Lyman Bishop died owning the farm, hop yard and poles, and while the latter were used in the yard for growing hops. That the plaintiff was appointed his executrix, and as such, she, on the 8th of November, 1849, sold the said hop-poles, as personal prop belonging to the estate, to the defendant, and that the not suit was given for the-price thereof; that at the time the p were so sold and purchased, “ they had been taken down for purpose of picking the hops therefrom, and were in heap! the hop-yard, and not permanently severed from the freehold, but only with the view of being re-set in the season of growing and raising hops, and that they were indispensably necessary for the growing and raising of hopsthat after said sale, and in March, 1850, the farm was sold under the mortgage to Black-man, and purchased by one Nichols, the hop-yard and poles then being upon the same ; that the poles were a portion of the real estate, and that Nichols by his said purchase acquired title to the same, and that therefore the consideration of said note had failed.
    To this answer the plaintiff demurred, on the ground, that upon the facts in the answer stated, the hop-poles were personal property, and not fixtures, or attached to the real estate as a part thereof, and that title to the same passed by the sale to the defendant, and was not acquired by the purchaser of the farm.
    The cause was heard by Justice Mason at special term, who overruled the demurrer and ordered judgment for the defendant; the judgment was affirmed by the supreme court in the sixth district. The plaintiff appealed to this court.
    
      George W. Sumner, for the appellant,
    
      Southworth & Pritchard, for respondent,
   Gardiner, Ch. J.

The only question presented in this case is whether the hop-poles, at the time of the sale to the defendant, were personal property, or to be deemed part of the realty. This question, I think, is settled by the facts stated in the answer, to which the plaintiff has demurred. If hop-poles can constitute a portion of the real estate, the defendant acquired no title to those purchased by him, conceding the truth of the answer. Assuming, as we must, the truth of the facts alleged by the defendant in his answer, the hop-poles were, at the time of the sale, a part of the realty. Of course, no title passed to the purchaser, and the note in question was wholly without consideration.

The root of the hop is perennial, continuing for a series of years. That this root would pass to a purchaser of the real estate, there can be no question. The hop-pole is indispensable to the proper cultivation of this crop. It is distinctly averred, and admitted, that the poles belonged to the yard upon these premises, that they were used for the purposes of cultivation, and were removed from the place where they were set, in the usual course of agriculture, with a view to gather the crop, and without any design to sever them from the freehold; but, on the contrary, with the purpose of replacing them, as the exigency of the new growth required. In a word, they were to be permanently-used upon the land, and were necessary for its proper improvement. If the poles had been standing in the yard at the time of the sale, all admit, that they would have formed a part of the realty. But by being placed in heaps for a temporary purpose, they would not lose their distinctive character, as appurtenant to the land, any more than rails, or boards, from a fence in the same condition, would become personal property. Indeed, the case cannot be distinguished from Goodrich v. Jones, (2 Hill, 142,) where it was held that manure in heaps in the yard, and that fences, constitute a part of the freehold; and where the materials of which the fence is composed were temporarily detached, without any intent to divert them from their original use, it would work no change in their nature.

The opinion, in the case cited, was pronounced by Justice Cowen, who was himself an advocate for the doctrine of corporeal annexation, as being in general, the true criterion of a fixture. (Walker v. Sherman, 20 Wend. 655.) But all that was claimed by the learned justice, in his elaborate opinion in Walker v. Sherman, was that the chattel should be “habitually attached to the land, or some building upon it.” It need not, he adds, “be constantly fastened.” I think, according to this principle, that hop-poles which are put into the ground every season, and continue there until they are removed to gather the crop, and which are designed to be thus used, in the same yard, for the same purpose, until they decay by lapse of time, may without impropriety be considered as “ habitually attached to the land,” although “ not constantly fastened to it.”

The judgment of the supreme court should be affirmed.

Edwards, Allen, Parker and Selden, Js. concurred.

Denio, J. (dissenting.)

The only question in this case is, whether the hop-poles which formed the consideration of the note on which the action was brought were real or personal property. The owner of the farm on which they were used mortgaged it, and died. The plaintiff, who was executrix of the mortgagor, sold the hop-poles and took the note in question for the price. The mortgage was then foreclosed, and on the sale the mortgaged premises were purchased by a stranger. The defendant,, who purchased the hop-poles and gave the note, maintains that it was given without consideration, the plaintiff, as he insists, not being the owner of, and having no authority to sell the hop-poles.

The question virtually arises between the vendor and vendee of the land; for the purchaser under the foreclosure occupies the position of a purchaser of the land who has received a conveyance from the owner, and the defendant as purchaser of the hop-poles represents that owner; and by his purchase he acquired the same rights which he had and no others. This is the most unfavorable position in which such a question can be presented, for the party who claims the property as personal chattels. None of'the distinctions which have been allowed in favor of tenants for a term against their landlords, or tenants for life against the remainder-man, or reversioner, or of executors against the heir, where the subject was erections made for the purpose of trade or manufacture, prevail here. If the hop-poles were annexed to the land in such a manner as to become fixtures for any legal purpose, the executrix had no interest in or title to them.

We are allowed to know judicially what every person out of court knows, that hop-poles are not permanently attached to the land. The cultivator provides himself with a supply of them, and when the root of the hop, which is perennial, shoots forth in the spring, these poles are set up perpendicularly in the earth, for the vine to entwine itself around. When the crop is mature the poles are taken down and stripped of their burthen, and set up in stacks, to be again used in the same manner the next year. The question is whether this is such an affixing to the land, as to change the character of the poles from that of personal property, which they bore when brought into the field, into real estate. To convert personal chattels into real property by force of the law of fixtures there must in general be a permanent corporeal annexation of the chattel to the land, or to something which is itself annexed to the land. Without going over the cases, which are numerous and were elaborately reviewed by the late justice Cowen, in giving the opinion of the supreme court in Walker v. Sherman, 20 Wend. 636,) I am satisfied with the conclusion at which that court arrived, that nothing of a nature personal in itself -will pass by a conveyance of the land, unless it be brought within the denomination of a fixture by being in some way permanently, at least habitually attached to the land or some building upon it. (Id. 655; and see Freeland v. Southworth, 24 id. 191.) Now although the ends of these poles are annually inserted in the ground, they are as often taken out, and for the greater part of the-year they are in no manner fastened to the earth, but are entirely movable. The purpose for which they are set up is temporary on each occasion, though it is annually recurring. It seems to me that they partake of the character of implements or utensils rather than of permanent fixtures. I am of opinion therefore that they did not become parcel of the realty by actual annexation. If they have acquired that character it is on account of some other relation which they bear to the land.

There is a class of cases in which chattels are held to be fixtures, without actual annexation, but they are considered as exceptions to the general rule, and depend upon peculiar circumstances which do not exist here. Besides the articles which pass under the denomination of heir looms, it is settled that the doors, windows, locks, keys and rings of a house, the fences upon farms and the manure about a barn yard will pass under a conveyance of the land. (Walker v. Sherman, supra ; Amos & Fer. on Fixtures, 183; Middlebrook v. Corwin, 15 Wend. 169; Goodrich v. Ives, 2 Hill, 142.) These cases of constructive annexation are placed upon the ground, that the inheritance cannot be enjoyed without the use of the things so considered as annexed ; and it is said that they are accessories necessary to the enjoyment of the principal. (See Lawton v. Salmon, 1 H. Black. 259, n.) I do not think hop-poles come within the reason of these cases. They would doubtless be convenient for the purchaser of the freehold, but not more so than the other farming implements in the use of the former proprietor. They are just as well adapted for use upon another hop farm as on this; and the purchaser can supply himself with new ones as readily as with other necessary things for carrying on the agricultural operations of the farm.

I am of opinion that the judgment of the supreme court should be reversed, and that judgment should be rendered in favor of the plaintiff.

Johnson, J. concurred with Denio, J.

Judgment affirmed.  