
    Degraffenreid vs. Scruggs.
    A cotton gin erected in a house and attached to the house by nails and braces, is a part of the freehold, and passes by the deed of vendor.
    Scruggs sued Degraffenreid in trover, in the Circuit Court of Fayette, to recover the value of a cotton gin. Plea, not guilty, and issue.
    It came on to be tried at the December term, 1843, Dunlap, Judge, presiding.
    It appeared, that Shelton was the owner of 700 acres of land lying in Fayette county, a cotton farm; that for the purpose of ginning the cotton made thereupon, he had erected a cotton gin; that the house was built upon blocks, and the gin fastened 
      to the house by nails and braces. Shelton conveyed the 700 acres, with hereditaments and appurtenances, by deed in trust to Nelson, to secure the payment of certain debts. This deed was made on the 27th day of April, 1842. On the 22d day of December, 1842, Shelton sold and conveyed the cotton gin to Scruggs in trust for the benefit of other creditors. On the 26th day of January, 1843, Nelson sold the land and appurtenances at public auqtion to Degrafienreid, and conveyed the same to him.
    Scruggs demanded the cotton gin of Degraffenreid, which he refused to deliver.
    The Judge charged the jury, that if the gin could be delivered and removed without serious injury to the land or gin, it could not pass under the deed to Nelson; but if, on the contrary; the gin could not be severed and removed from the premises without injury to the land or gin, they would find for the defendant.
    The jury returned a verdict in favor of the plaintiff for $121. A motion for a new trial was made and overruled, and judgment rendered, from which the defendant appealed in error.
    
      Searcy, for plaintiff in error.
    Questions respecting the right to fixtures arise principally between three classes of persons.
    1st. Between the executor and the heir; and here the rule is more rigorous in favor of the inheritance and against the right to consider as personal chattels any thing which has been affixed to the freehold.
    2d. Between the executor of tenants for life and the remain-derman or reversioner. Here the right to fixtures is considered more favorable.
    3d. Between landlord and tenant, and here the greatest latitude and indulgence is given to the tenant.
    See 3d edition of Kent, 2 vol, M page 345; 5th Am. ed. 2 Starkie, T page 908, note s.
    The strict rule as to fixtures that applies between executor and heir, applies equally as between vendor and vendee. 3d ed. of Kent, 2 vol. top page 345; Holmes vs. Temple, 20 John. Tí,. 30; 6 Conn.- 'R. 665; 3 Mason’s R. 450; 6 Grcenleaf R. 154. And so the mortgagee; 1 Ashe’s R. 175; 15 Mass. 169; 3d cd of Kent, 2 vol. page 345, note.
    In the case of Elwes vs. Man, 3 East’s R. 38, all the English cases are reviewéd bythe court; and there the distinction is taken, and shown by the court to run through all the cases reviewed, between annexations to the freehold for the purposes of trade and manufactories, and those for agriculture: and the right of the tenant to remove was strong in the one case and not in the other. It was held, that an agricultural tenant who had erected fixtures for the convenient occupation of his farm, was not entitled to remove them. When the erections had been for the benefit of trade or manufactures, the right to remove would have been undoubted; and this was a case between landlord and tenant, where the greatest relaxation is given to the rule.
    The old rule, that whatever was annexed to the freehold could never again be removed without the consent of the owner of the inheritance, was relaxed solely for the benefit of trade and manufactures; and in course of time, as between landlord and tenant, it was further relaxed; and matters merely ornamental and of domestic convenience, were excepted.
    These are only exceptions to the general rule; and in the case of Buchland vs. Butterfield, 6 E. C; L. R. 17, the court says, that being exceptions only, they ought to be fairly considered, but not extended.
    These exceptions have not been extended by the American cases. The case of Van Ness vs. Picard, in 2 Peters’s R. 137, was placed on the ground .that the fixtures were erected for the purpose of trade. And the case of Holmes vs. Temple, 20 John. R. 29, where a tenant was allowed to remove a cider mill, was decided on the same principle that governed Lord Ch. B. Comyn, who held that a tenant could remove a cider mill, because it was a mixed case between enjoying the profits of the land, and carrying on a species of trade, considering a cider mill properly as accessory to the trade'of making cider.
    All these causes are between landlord and tenant, where the greatest latitude and indulgence is given to the tenant.
    The case now before the court, is between vendor and ven-dee, where the rule obtains in its greatest rigor; and in such cases the exceptions to the old rule are founded upon this distinction: “That where the fixtures are accessory to a matter of a personal nature, they are considered as personal and may be removed. But when accessory to the freehold, they are considered as part of the freehold and cannot be removed.” And so in the case of Lawton vs. Lawton, 3 Atk. 13, a case between executor of tenant for life and remainderman, of a fire engine to work a colliery, was considered an accessory to the carrying-on the trade of getting and vending coal, a matter of personal nature. Upon the same principle the cider mill was held to he a movable chattel in the case decided by Comyn, above referred to. In the case of Lawton vs. Salmon, 1 H. Bla. R. 259, between executor and heir, for the removal of salt pans, Lord Mansfield says: “The salt spring is a valuable inheritance; but no profit arises from it unless there be a salt-work, which consists of buildings,-&c. for the purpose of containing the pans, &c. The inheritance cannot be enjoyed without them. They are accessories necessary to the enjoyment of the principal.”
    Apply this principié to the case now before the court: to what chattel interest, or what matter of a personal nature is this gin accessory? We contend that -it is accessory to the freehold, absolutely necessary to the enjoyment of the land. Without it, the product of the land would be of no value. In the case of the cider mill, the fixture was for the purpose of changing the product of the land. In this case, the fixture is not for the purpose of changing the product, but preparing it for market.
    No person appeared for the defendant in error.
   Gheest, J.

delivered the opinion of the court.

This is an action of trover, brought under the title of the vendor of a tract of land, against the vendee of the land, for a cotton gin, that was erected on the land and affixed to the gin house.

The court charged the jury, that if. the gin could be severed and removed without serious injury to the land or gin, that it would not pass under the deed, and they must find for the plaintiff.

The jury found a verdict for the plaintiff, and the defendant appealed in error to this court.

The original rule of the common law was, that every thing which was affixed to the freehold was subjected to the law governing the freehold. But in later times this rule has been greatly relaxed in favor of tenants, and in relation to fixtures erected for the purposes of trade. But as between executor and heir, and between the vendor and vendee, the original rule prevails, that whatever is affixed to the freehold passes with it.

In this case, the gin was erected in the gin house, and fastened to the house by nails and braces. It was therefore permanently attached and fixed to the freehold, and this is the true and certain criterion to determine whether it passed by the deed with the freehold. Walker vs. Sherman, 20 Wend. Rep. 636; 2 Kent’s Com. 3 ed. 345-6.

Any attempt to carry out the principle stated by his honor to the jury, would be attended with endless difficulty and uncertainty. If fixtures attached to the freehold may be removed, provided they can be severed without injury to the land, scarcely a case could occur in which they would pass by the deed.

Wfe think the court erred in the charge to the jury, and reverse the judgment and remand the cause.  