
    TAYLOR VS. MAULE.
    Where a landlord agreed to pay the tenant for fixtures left at the end of the term at a valuation to be made, but did not do so, the landlord cannot in a suit for the value of the fixtures set up as a defence that the tenant would not give up possession until compelled by the Sheriff.
    Error to the District Court of Philadelphia. No. 198 January Term, 1864.
    The case was originally reported in 4th Luzerne Legal Observer, page 78.
    
      ' The facts of the case appear in the opinion of the Court below, •which was as follows per:
    Stroud, J.
    
    This is an action of covenant brought to recover the value of -certain fixtures made by the plaintiff as lessee of a coal yard, demised to him by the defendant under an agreement dated February 25,1858, for a term of five years, commencing on March 1st, 1858.
    The part of the lease on which the action is founded is in these words: “And it is agreed between said parties that should the ■said Taylor, his heirs or assigns remain in possession to the •close of the lease (namely five years) whatever improvements the ■said Taylor, his heirs or assigns may erect or place on said prem- . ises, the same are to be left thereon, the said Maulé, his heirs and .assigns, to pay to said Taylor, his heirs and assigns, for the same .at a fair valuation thereof, not exceeding one thousand dollars.” Taylor did not quit the demised property at the close of the term, but held over and kept the possession until he was turned -out by the Sheriff under proceedings in conformity with the ■landlord and tenant act, upwards of four and a half months later.
    A valuation of the fixtures had been made by persons chosen hy the parties on March 2,1863, two days after the expiration of the term. The amount of this valuation was $950.
    There was no dispute as to these facts, and the jury were told •that the right of the plaintiff to recover for the fixtures depended -on his leaving the premises as well as the fixtures at the close of his term, February 28,1863, that by holding over beyond that period and until he was dispossessed by the Sheriff he had lost his right, or rather had never acquired any. The ground of this instruction was-that the surrender of the coal yard by the tenant to the landlord at the close of his- term, was a condition precedent to and inseparable from the right of the' tenant to demand ' payment for the fixtures. "This surrender as well of the coal yard as of the fixtures at the end of the lease, were essential elements of the contract; that neither the one 'nor the other had been so surrendered, and therefore there was a want of performance of his covenant by the tenant which disentitled' him from .asking performance of the landlord.
    
      This short consideration of the subject seems to dispose of the entire controversy.
    Under the contract it is clear that had the plaintiff left both the possession of the coal yard and the fixtures at the end of his term, his right to recover the value of the latter could not have-been contested. For this would have been a full performance of his agreement, an exact compliance with its terms literally and according to its spirit.
    And it is equally clear, as a principle of the law of landlord and tenant, that irrespective of a contract between the parties the tenant might have removed the fixtures which he had constructed whilst tenant, provided he had done this during the existence of his term. But the fixtures or improvements as they are denominated in the lease, being in their nature part of the realty, the moment the term had expired the tenant’s proprietary right in them was at an end, and they became as much the property of the landlord as was the coal yard itself.
    By holding over after the expiration of his term, without the consent of his landlord and against his will, the teriant became a trespasser, and if Overdeer vs. Lewis, 1 W. & S. 90 be law, he might have been dispossessed by the landlord, provided he used no greater force than would have been requisite for the purpose. But although Overdeer vs. Lewis is cited as authority in Evans vs. Hastings, 9 Pa. 273; and Kellam vs. Janson, 17 Pa. 469, yet as the Court in that ease fell into a mistake as' to the nature of the tenancy of one holding over, styling it a tenancy at will, instead of by sufferance (see Co. Litt. 270, b. n. 1,) and as the decisions in the English Courts are in direct conflict with Over-deer vs. Lewis it may be well doubted whether on a review the authority of this case will .not be repudiated; see Newton vs. Harland, 1 M. & G. 644, 39 E. C. L. 581; 1 Scott N. Rep. 474. At all events according to the uniform decisions of the Courts of both countries, the tenant by holding over after the expiration of a term-definitely fixed is regarded as a trespasser. If so he must lose all his rights as tenant to recover the fixtures or their value ; see Heap vs. Barton, 12 C. B. 274, where the whole sub- - ject is elaborately discussed both. by counsel and the Court. There is a single casé, Penton vs. Robart, 2 East 88, in which it Was ruled that a tenant holding over after the end of his term might remove fixtures which he had erected during the term. Yet the decision is in palpable opposition to numerous other cases, before and since. Its distinguishing feature from the other cases consists in the actual holding over of the tenant beyond . his term, and then being removed, returning co the demised propei’ty, re-entering it as an admitted trespasser, and carrying away by force the fixtures which he had left behind. Penton vs. Robart has not been formally overruled, but in Heap vs. Barton it is spoken oí by the Court in a way which leaves no doubt that under a similar state of facts it would not be adhered to. It is contrary principle and sound policy.
    In Holmes vs. Tremper, 20 Johnson 29, the Supreme Court of New York decided that a cider mill and press erected by a lessee during his tenancy at his own expense and for his own use in making cider on the farm, were not to- be regarded as fixtures, but simply as ordinary personal chattels, and that the lessee might, after the expiration of his tenancy and after he had quitted the farm, enter again upon it and carry away the cider mill and press. The Court said this entry would render him liable as a trespasser, and liable for damages. Yet the personal chattels being his he had a right to re-possess himself of them. This may, perhaps, appear to be a little overstrained, yet certainly .•a tenant under such circumstances might bring trover, or with us replevin after demanding the chattels, and being refused per-' mission to take them. As to articles of such a description his right would be as well founded as it would be to farming utensils, which he might have neglected to remove during his term.
    Rule discharged.
    Taylor then took a writ of error to the Supreme Court.
    
      Wm. S. Peirce, Esq., for plaintiff in error,
    cited Holsman vs. Abrams, 2 Duer 435; Van Rennssalaer vs. Penniman, 6 Wendell 569; Rennick vs. Rennick, 1 Bradford 234; Robinson vs. Kettletas, 4 Edwards 67; Wills vs. Bannister, 4 Mass. 514; Taylor vs. Townsend, 8 Mass. 411; Washburn vs. Sproat, 16 Mass. 449; Vanness vs. Pacard, 2 Peters, 137; Lemar vs. Miles, 4 Watts 330; Fenton vs. Robart, 2 East 88; Cornell vs. Vanartsdalen, 4 Barr 373; Lewis vs. Effinger, 30 Pa. 281.
    
      A. Thompson, Esq., contra,
    
    cited Pilling vs. Armitage, 12 Vesey 85; Walton vs. Hospital, 14 Vesey 333; Beers vs. St. John, 16 Conn. 322; Lee vs. Risdon, 2 Eng. Com. Law R. 69; White vs. Arndt, 1 Wharton 91; Weston vs. Woodcock, 7 Meeson & W. 14; Minchall vs. Lloyd, 2 Meeson & W. 460; McIntosh vs. Potter, 3 Meeson & W. 184; Matthinet vs. Gidding, 10 Ohio 464; Stover vs. Hunter, 3 Barn. & Cress. 368; Preston vs. Briggs, 16 Vermont 124; Lyde vs. Russell, 1 B. and Ad. 394; Ruffey vs. Henderson, 8 Eng. L. & Eq. 305; Elwes vs. Mawe, 2 Smith L. C. 243, 245, 257, 259; Davis vs. Moss, 38 Pa. 346.
   The Supreme Court reversed the judgment of the District 'Court on March 10, 1864, in the following opinion per:

Read J.

By a written agreement under seal, Daniel Maulé leased to William Taylor a lot of ground on the west side of Ninth Street, ■south of Wallace Street, for the term of four years from the 1st day of March, 1858, at certain rents therein stipulated payable •quarterly. Taylor paid Maulé for certain buildings and fixtures, two hundred and twenty-five dollars, which Maulé was to repay him at the expiration of the lease. It was agreed between the parties, “that should the said Taylor remain in possession at the close of the lease, (namely, five ‘years,) whatever improvements said Taylor, his heirs or assigns may erect or place on said premises, the same are to be left thereon, the said Maulé, his heirs or assigns to pay said Taylor, his heirs or assigns for the same at a fair valuation thereof, not exceeding one thousand dollars, including also the sum of two hundred and twenty-five dollars first within mentioned.” By a writing under seal, dated the 2d March, 1863, and executed by the said parties, they appointed two persons, “to appraise and place a fair value, on all the fixtures -and improvements made or erected on said premises, by said W. M. Taylor,” excluding certain buildings and part of the railroad track, and they then say, “we do hereby agree for ourselves, and •each of us to abide by the value placed thereon” by the said per-sons. “It being understood that the said Daniel Maulé is not bound for a.greater amount than one thousand dollars as. s«t forth in lease.”

On the same day, in the presence of the parties, the said appraisers valued the said fixtures and improvements, and by a sealed paper dated the same 2d day of March, found them to be lyorth nine hundred and fifty dollars, which Mr. Maulé refused to pay, and Taylor remained on the premises until he was put out. by a decision of a Sheriff’s jury, possessiou being delivered to Mr. Maulé on 23d July, 1863. The fixtures were sold to the next tenant by Mr. Maulé on the 7th August, 1863 for nine hundred dollars.

The present suit was then commenced to recover the value of these fixtures, the payment of which was secured by an independent covenant in the lease. To this the fact that following the breach of this covenant by Maulé, Taylor did not surrender the premises to him is no answer, and the learned judge, in the Court below, was in error in instructing the jury that the plaintiff could not recover. It would be contrary to reason and justice, that the defendant could, under such a pretence, retain the money of the plaintiff, which he had solely bound himself to pay.

Judgment reversed and a venire de novo awarded  