
    JOSEPH A. BALDWIN and BELLE A. BALDWIN, his wife, and the SHERWOOD DISTILLING COMPANY vs. SUMNER FRANCIS.
    
      Fixtures: agreement they shall remain personal property and may be removed. Trover: injunction to restrain.
    
    The rule of common law that whatever is affixed or annexed to the freehold becomes a part of it and can not be removed except by him who is entitled to the inheritance, may be modified by agreement between the owner of personal property and the owner of realty, made before annexation, and such property may then retain its status after annexation, and an enforceable right to remove it may be conferred upon the owner of the personal property. p. 181
    By agreement between the manufacturers of bowling alley furnishings, etc., a bowling alley floor was put together and nailed to the floor of the building owned in fee by the proprietor, and the alley was leased from the former to the latter, with the agreement that if all the payments due on the bowling alley floor and fixtures were not made, that the lessor might take up and remove the bowling alley, etc.; and that if all the payments were made tbe lessor would execute to the lessee a bill of sale for the alley floor and fixtures. Against B., who was the purchaser of the realty at a foreclosure sale of a mortgage executed prior to tbe lease and the attaching of the fixtures, the assignee of the lessor brought an action of trover for the conversion of the bowling alley; B. filed a bill against the assignee of the lessor praying that he be allowed to pay off the instalment that remained due on the bowling alley with interest and costs, etc., and that such assignee be compelled to execute to him a bill of sale for the alley, and also praying for an injunction to restrain the further persecution of the action of trover; held, 
      that if the fixtures passed to the purchaser of the real estate the complainant had his defense at law, and if. the fixtures under the terms of the lease remained personal property they did not pass to the purchaser of the real estate, and such an injunction would therefore be either unnecessary or improper. p. 183
    It was further held that in the latter case having no interest in the bowling alley or the lease, the purchaser of the realty was not entitled to pay off the instalments and redeem the lease. pp. 182,183
    A party has no right to redeem a mortgage who has not interest in the property covered by it. p. 182
    
      Decided May 10th, 1912.
    
    Appeal from the Circuit Court for Baltimore City. (LIeuisleb, J.). The faets are stated in the opinion of the Court.
    The cause was argued before Boyd, C. J., Briscoe, Pearce, Burke, Thomas, Urner and Stockbridge, JJ.
    
      W. H. DeC. Wright (with whom was J.. Walter Lord on the brief), for. the appellants.
    
      Victor I. Cook and Clifton S. Brown (with whom was E. Allan Sauerwcin, Jr., on the brief), for the appellee.
   Thomas, J.,

delivered the opinion of the Court.

The appeal in this case is from a decree of the Court below sustaining a demurrer and dismissing, the bill of complaint of the appellants.

It appears from the allegations of the bill that Robert E. Geddes, who was the owner of certain real estate in Baltimore county, Maryland, subject to a mortgage executed by him and his wife in favor of Lucretia C. Manning, dated February 4th, 1905,- and recorded among the Mortgage Records of Baltimore county, sometime in the year 1909 erected on said property a building known as the “Relay Casino,” and placed therein four bowling alleys which he obtained from the Brunswiek-Balke-Collender Company under a contract or lease executed by him and the said company on the 25th day of June, 1909, by which, in consideration of the sum of fifteen hundred dollars, five hundred dollars of which was to be paid cash, and the balance to he secured by ten notes of one hundred dollars each, the said company leased to him the howling alleys for a period of ten months. The lease provided that upon failure of Geddes to pay the notes when due, the company should have the right to take possession of the alleys and to have the same as though the lease or contract had not been executed, and also provided that upon payment of all the notes according to the terms thereof the company would convey the howling alleys to Geddes by a hill of sale.

On the 29th of June, 1910, Geddes and his wife executed to the Sherwood Distilling Company of Baltimore City a mortgage on said real estate to secure the payment of $14,-294.10. In February, 1911, the property described in said mortgage to I/ucrefia C. Manning was sold under the power of sale contained therein for the sum of $7,800.00 to Jay F. Tower, who, the hill alleges, purchased the same for the Sherwood Distilling Company, and who-, by direction of said company, afterwards sold and conveyed it to the appellants, Joseph. A. Baldwin and Belle A. Baldwin, his wife, by deed dated the 26th day of May, 1911, and duly recorded among the Land Records of Baltimore county.

The hill also alleges that after the property had been sold to Baldwin and his wife, he received notice from the defendant (appellee) that he claimed the bowling alleys referred to in said lease or contract, and that the plaintiff (appellant) Joseph A. Baldwin, learned from him that he based his claim upon said lease and an assignment thereof to him, dated January 27th, 1911, which lease and assignment were recorded among the Chattel Records of Baltimore county. The hill then avers that said pretended lease was intended as a conveyance of .the bowling alleys therein referred to to Geddes, and was resorted to as a means of securing the payment of the ten notes, for one hundred dollars each, given for part .of the consideration for the sale; that it was in legal effect a mortgage, and that at the time it was assigned to the defendant there was due from the said Robert E. Geddes, under the terms thereof, $160.00, and that the consideration for the assignment did not exceed the sum of $150.00.

It is further averred that the howling alleys were securely nailed to the floor of said building in which they were located, and cannot be taken out of said building without very substantial damage to the building and to the alleys; that, as purchasers of the real estate “to which the bowling alleys were affixed,” the plaintiffs, Joseph A. Baldwin and his wife, are entitled to redeem said lease by payment of the amount due thereunder by Gedides, and that to that end and for that purpose the plaintiffs offered the defendant the sum of $160.00, with interest thereon from February 25th, 1910, and the costs in the suit in trover for the conversion of said bowling alleys, instituted by the appellee against the appellants in the Court of Common Pleas of Baltimore City.

The prayer of the bill is that the plaintiffs be allowed to redeem the lease from the Brunswick-Balke-Collender Company to Geddes, upon payment to the defendant of the sum of $160.00, with interest from the 25th day of February, 1910, and'the costs in'the suit of the defendant against the plaintiffs for the conversion of said alleys, and that upon the payment of said sum the defendant be required to execute to the plaintiffs a bill of sale for said alleys, and that the defendant, his agents, etc., be enjoined from prosecuting said action of trover against the appellants, and for general relief.

Counsel for the appellants earnestly contend that, but for the effect of the agreement between Geddes and the Burns-wick-Balke-Collender Company,' the bowling alleys became a part of the building in 'which they ■ were located, and were subject to the lien of the mortgage in favor of Lucretia C. Manning. If this is so then the appellants, Joseph A. Baldwin and his wife, acquired title to them by virtue of the sale under said mortgage, and the deed to the purchaser and the deed to said appellants unless, by reason of said contract, the bowling alleys retain their character of personal property, in which event they did not pass by the mortgage sale as part of the real estate.

It is stated in 19 Oyc. 1048: “By agreement between the owner of personal property and the owner of realty, made before annexation, the personal property may be made to retain its status after annexation, or an enforceable right to remove it may be conferred upon the former owner of the personal property.” And in the ease of Walker v. Schindel, 58 Md. 360, where fixtures wore purchased by Schindel and placed in a building owned by his partner under a contract in which it was stipulated that the fixtures should remain the separate and individual property of Schindel, and where the mortgagee of the owner of the building, at the time he took the mortgage, and the purchaser, at the time he purchased the building, knew of the terms of said contract, Chibe Judge Babtoi. said: “It is well settled that the rule of the common law by which, “whatever is affixed, or annexed to the soil or freehold becomes a part of it, and cannot be removed except by him who is entitled to the inheritance,’ may be modified or changed by the agreement of the parties express or implied. And where, as in this case there was an express agreement that the articles, or fixtures, so affixed, should remain the property of the party by whom they were purchased and placed in the building, there can be no doubt or question that the agreement is valid, and that the articles will be treated as personalty. Many eases might be cited in support of this proposition. We refer only to Curtis v. Riddle, 7 Allen, 185; Taft v. Stetson, 117 Mass. 471; Sheldon v. Edwards, 35 N. Y. 279; Tifft v. Horton, 53 N. Y. R. 377, and The N. C. R. R. Co. v. Canton Co., 30 Md. 347, and cases there cited.”

IIow far such agreements between the owner of personal property and the owner of real estate may be effective against the mortgagee in a prior mortgage of the real estate, or against a subsequent mortgagee or purchaser of the real estate without notice of the terms of the agreement, we are not called upon to determine in this case, for if, notwithstanding the lease from the Brunswick-Balke-Collender Company to Geddes, the bowling alleys became part of the real estate and subject to the lien of the prior mortgage, and the appellants, Joseph A. Baldwin and his wife, acquired title to them by the sale and deed made in pursuance of the terms of said mortgage, and the deed to them, there is no occasion for the relief prayed in the bill. The title of the appellants so acquired would not be subject to the claim of the appellee, and their deed would be a complete answer to the action of trover against them. In other words, under the averments of the bill, if Joseph A. Baldwin and his wife acquired' any title at all to the bowling alleys it was because, as between the appellee and said appellants, they were a part of the real estate, and passed to them under said mortgage sale and subsequent deeds.

On the other band, if the Brunswick-Balke-Collender Company did not part with the title .to the bowling alleys, and they did not become a part of the real estate, but retained their character of personal property, then the appellants, Joseph A. Baldwin and his wife, did not acquire any title to them by the sale under the prior mortgage or the deeds to' and from Jay F. Tower and wife, or any interest in them that would entitle said appellants to redeem the lease or to an injunction restraining the prosecution of the suit for their illegal conversion. The mortgage from Geddes and wife to Lucretia-C. Manning embraced only the real estate described therein, and the deeds from Manning to1 Tower, and from Tower to the appellants, Baldwin and wife, did not include anything except the real estate referred to in said mortgage. Even if the Tease from the Brunswick-Balke-Collender Company to Geddes be treated as a mortgage, the appellants would have no right to redeem it unless they had an interest in the property covered by the lease. McNiece v. Eliason, 78 Md. 168; Kent Building Co. v. Middleton, 112 Md. 10.

It follows from what has been said that if the appellants acquired title to the bowling alleys in question it was because they were a part of the real estate embraced in said mortgage and passed as such by the mortgage sale and subsequent deeds, and their title is not subject to the claim of the appellee, and that if the alleys were not part of the real estate, but, by reason of the lease or agreement between the vendor and Gaddes, retained their character of personal property, the said appellants did not acquire any title to them at all. In either case the appellants would not be entitled to the relief sought, and the decree of the Court below dismissing the bill of complaint must be affirmed.

Decree affirmed, with costs.  