
    Snedeker and another against Warring.
    Permanent erections and fixtures, made by the mortgagor after the execution of the mortgage upon the land conveyed, by it, become a part of the mortgaged premises.
    In determining between mortgagor and mortgagee whether such erections and fixtures are real or personal property, the rules prevail which are applicable between grantor and grantee.
    A statue erected as an ornament to grounds may be a part of the realty, although it is not fastened to the base on which it rests and can be removed without fracture.
    A sculptor placed a statue of Washington, made by himself, and weighing with its pedestal, cut from the same block of stone, about three tons, in the grounds in front of his house, on a base three feet high; the base rested upon a permanent artificial mound, raised for that purpose, and was constructed of cut stone laid up without mortar or cement, although the seams were pointed with the latter; the statue, the base and the house were of similar stone, and the top of the base was made to match in appearance the pedestal; the statue was not fastened to the base, nor was the latter affixed to the foundation upon which it rested; Held, that the statue was a part of the realty; Held also that a sun dial, constructed on a block of similar .stone weighing two hundred pounds,' appropriately located in the same grounds and erected on a permanent foundation of stone, was a part of the real estate.
    Johnson and Denio, Js., dissented.
    Appeal from a judgment of the supreme court.
    James Thom, the sculptor, being the owner of a farm situate in the county of Rockland, in the year 1842 executed a mortgage upon it to one Crum. Subsequently he erected upon it a dwelling-house of red stone, in the Gothic style, and at the same time erected a sun-dial, and prepared a base in the lawn in front of the house and placed upon the latter a colossal statue of Washington. In 1849 the defendant purchased the farm and its appurtenances, on a sale thereof by virtue of the mortgage, and took possession of the premises, the' dial and statue then being where they were originally erected. Thom executed a second mortgage on the farm after the erection of the dial and statue, and the defendant became the owner of this mortgage by assignment at the time he purchased the premises at the sale by virtue of the first mortgage. In 1847 the sheriff of Rockland county, by virtue of an execution issued to him on a judgment recovered during that year against Thom, sold the dial and statue as personal property and they were purchased by the plaintiff. The defendant having refused to allow the plaintiff to remove the dial and statue, this suit was brought to recover their value.
    On the trial before Justice S. B. Strong at the Rockland county circuit, in Decencber, 1849, the above mentioned facts- appeared. It was also proved that the dial was three or four feet high, supported or constructed upon a block of red stone, square at the top and in the form of a pedestal at the bottom, and the intermediate part shaped to resemble a column, eighteen inches in diameter in the middle and eight inches in diameter at each end. The pedestal rested upon a flag which covered the mouth of a well, from which water was conducted through pipes under ground into the house. This block of stone on which the dial was constructed was not fastened to the flag on which it rested, and was retained in its position merely by its weight, which was about two hundred pounds. The dial was in front of the house and between the latter and the statue.
    It was proved that the statue with its pedestal was made from a single block of red stone, similar in color to the block on which the dial was made and the stone of which the house .was erected, and that it weighed between three and four tons. A mound had been raised about three feet above the natural surface of the ground, in the centre of which a foundation for the base of the statue was constructed of rough stone, laid up without mortar; upon this foundation, which did not rise to the surface of the mound, a base for the statue was erected of square blocks of stone, similar in color to that of which the statue and its pedestal were made; this base was square in form, and hollow, but the stones composing it were not laid in mortar or cement or in any way fastened together, although the joints were pointed with cement. The base rose some three feet above the surface of the mound, and corresponded with the pedestal of the statue which rested upon it. The statue and base were about 12 feet high. This base was constructed expressly for the statue to rest upon, but the latter was not in any way fastened to it; the only impediment to its removal was its weight. It had never been removed from its position after it was first placed upon the pedestal, which was six or seven years prior to the trial, nor had the foundation or base settled or given way. Mr. Thom was ‘examined on the part of the plaintiff, and gave evidence tending to prove that he intended to sell the statue, and that it was placed upon the base to remain there only until he should be able to make sale of it. This last evidence was objected to by the counsel for the defendant, and he excepted to the ruling allowing it to be given.
    The counsel for thé defendant requested the court to nonsuit the plaintiff on the ground that the statue and dial were a part of the real estate. The motion was denied defendant’s counsel excepted. The counsel for the defendant also requested the court to rule and decide, as to each of the articles, that it was a part of the freehold and not personal property; the court declined to so rule and defendant’s counsel excepted. The cause was submitted to the jury under instructions from the court, which were excepted to by the defendant’s counsel; but in the view taken of the case by this court the charge and exceptions thereto need not be stated. The jury rendered a verdict in favor of the plaintiff for the value of the dial and the statue, assessing the value of the former at $25 and the latter at $1650. The judgment entered upon the verdict was affirmed by the supreme court in the second district. The defendant appealed to this court.
    
      Chas. H. Smith, for the appellant.
    
      A. Taber, for the respondent.
   Parker, J.

The facts in this case are undisputed, and it is a question of law whether the statue and sun-dial were real or personal property. The plaintiffs claim they are personal property, having purchased them as such under an execution against Thom. The defendant claims they are real property, having bought the farm on which they were erected at a foreclosure sale under a mortgage, executed by Thom before the erection of the statue and sun-dial, and also as mortgagee in possession of another mortgage, executed by Thom after their erection. The claim of the defendant under the mortgage sale is not impaired by the fact that the property in controversy was put on the place after the execution of the mortgage. (Corliss v. Van Sagin, 29 Maine R., 115; Winslow v. Merchants’ Ins. Co., 4 Metc. R., 306.) Permanent erections and other improvements, made by the mortgagor on the land mortgaged become a, part of the realty and are covered by the mortgage.

In deciding whether the property in controversy was real or personal, it is not to be considered as if it were a question arising between landlord and tenant, but it is governed by the rules applicable between grantor and grantee. The doubt thrown upon this point by the case of Taylor v. Townsend (8 Mass. R., 411) is entirely removed by the later authorities, which hold that, as to fixtures, the same rule prevails between mortgagor and mortgagee as between grantor and grantee. (15 Mass., 159; 4 Metc. R., 306; 3 Edw. Ch. R., 246; 1 Hilliard on Mortgages, 294, note f, and cases there cited; and see Bishop v. Bishop, 1 Kern., 123, 126.)

Governed, then, by the rule prevailing between grantor and grantee, if the statue and dial were fixtures, actual or constructive, they passed to the defendant as part of the realty.

No case has been found in either the English or American courts, deciding in what cases statuary placed in a house or in grounds shall be deemed real and in what cases personal property. This question must therefore be determined upon principle. All will agree that statuary exposed for , sale in a workshop, or wherever it may be before it shall be permanently placed, is personal property ; nor will it be controverted that where statuary is placed upon a building, or so connected with it as to be considered part of it, it will be deemed real property and pass with a deed of the land. But the doubt in this case arises from the peculiar position and character of this statue, it being placed in a court yard before the house, on a base erected on an artificial mound raised for the purpose of supporting it. The statue was not fastened to the base by either clamps or cement, but it rested as firmly on it by its own weight, which was three or four tons, as if otherwise affixed to it. The base was of masonry, the seams being pointed with cement, though the stones were not laid in either cement or mortar; and the mound was an artificial and permanent erection, raised some two or three feet above the surrounding land, with a substantial stone foundation.

If the statue had been actually affixed to the base by cement or clamps or in any other manner, it would be conceded to be a fixture and to belong to the realty. But as it was, it could have been removed without fracture to the base on which it rested. But is that circumstance controlling? A building of wood, weighing even less than this statue, but resting on a substantial foundation of masonry, would have belonged to the realty. A thing may be as firmly affixed to the land by gravitation as by clamps or cement. Its character may depend much upon the object of its erection. Its destination, the intention of the person making the erection, often exercise a controlling influence, and its connection with the land is looked at principally for the purpose of ascertaining whether that intent was that the thing in question should retain its original chattel character, or whether it was designed to make it a permanent accession to the lands.

By the civil law, columns, figures and statues, used to spout water at fountains, were regarded as immovable, or real (Pandects, lib. 19, tit. 1, § 17, vol. 7, by Pothier, 107) • though it was inferred that statues resting on a base of masonry were not immovable, because they were there, not as part of the construction, but as ornaments. (Corp. Juris Civ., by Kreigel, lib. 19, tit. 1, § 17; Poth. Pand., 109; Burrill’s Law Dic., “Affixus.”) But Labeo held the rule to be “ea qua perpetm usus causa in cedificiis sunt, adijicii esse; qua vero ad prasens, non, esse adijicii; thus making the kind of property depend upon the question whether it was designed by the proprietor to be permanent or temporary, or, as it was generally called by civilians, “its destination.” (Corp. Jur. Civ., by Kreigel, lib. 19, tit. 1, § 17.)

And Pothier says that when, in the construction of a large vestibule or hall, niches are made, the statues attached (“ attachées”) to those niches make part of the house, for they are placed there ad integrandam dommn. They serve to complete that part of the house. Indeed, the niches being made only to receive the statues, there will fail to be anything in the vestibule without the statues ; and he says, it is of such statues that we must understand what Papimanus says: “ Sigilla et statute affixa, instrumento domus non continentur, sed domus portio sunt. (Pothier de Communauté, §56.)

By the French law, statues placed in a niche made expressly to receive them, though they could be removed without fracture or deterioration, are immovable, or part of the realty. (Code Nap., § 525.) But statues standing on pedestals in houses, court-yards and gardens retain their character of “movable” or personal. (3 Touillier, Droit Civil de France, 12.) This has reference to statues only which do not stand on a substantial and permanent base or separate pedestal made expressly for them. For when a statue is placed on a pedestal or base of masonry constructed expressly for it, it is governed by the same rule as when placed in a niche made expressly to receive it, and is immovable. (2 Répertoire Générale, Journal du Palais, by Ledru Rollin, 518, § 139.) The statue in such case is regarded as mating part of the same thing with the permanent base upon which it rests. The reasons for the French law upon this subject are stated by the same author in the same work, page 517, § 129, where the rule is laid down with regard to such ornaments as mirrors, pictures and statues, that the law will presume the proprietor intended them as immovable, when they cannot be taken away without fracture or deterioration, or leaving a gap or vacancy. A statue is regarded as integral with the permanent hase on which it rests and which was erected expressly for it, when the removal of the statue will offend the eye by presenting before it a distasteful gap (“vide choquant”), a foundation and base no longer appropriate or useful. (Id., § 139.) Things immovable by destination are said to be those objects movable in their nature, which, without being actually held to the ground, are destined to remain there perpetually attached for use, improvement or ornament. (2 Ledru Rollin, Répertoire Générale, 514, § 30.)

I think the French law, as applicable to statuary, is in accordance with reason and justice. It effectuates the intention of the proprietor. No evidence could be received more satisfactory of the intent of the proprietor to make a statue a part of his realty, than the fact of Ms having prepared a niche or erected a permanent base of masonry expressly to receive it; and to remove a statue from its place, under such circumstances, would produce as great an injury and do as much violence to the freehold, by leaving an unseemly and uncovered base, as it would have done if torn rudely from a fastening by which it had been connected with the land. The mound and base in this case, though designed in connexion with the statue as an ornament to the grounds, would, when deprived of the statue, become a most objectionable deformity.

There are circumstances in this case, not necessary under the French law, to indicate the intention to make the statue a permanent erection, but greatly strengthening the presumption of such intent. The base was made of red sand stone, the same material as the statue, giving to both the "statue and base the appearance of being but a single block, and both were also of the same material as the house. The statue was thus peculiarly fitted as an ornament for the grounds in front of that particular house. It was also of colossal size, and was not adapted to any other destination than a permanent ornament to the realty. The design and location of the statue were in every respect appropriate, in good taste, and in harmony with the surrounding objects and circumstances.

I lay entirely out of view in this case the fact that Thom testified that he intended to sell the statue when an opportunity should offer. His secret intention in that respect can have no legitimate bearing on the question. He clearly intended to make use of the statue to ornament his grounds, when he erected for it a permanent mound and base; and a purchaser had a right so to infer and to be governed by the manifest and unmistakable evidences of intention. It was decided by the court of cassation in France, in Hornelle v. Enregistr. (2 Ledru Rollin, Journal du Palais, Répertoire, &c., 214), that the destination which gives to movable objects an immovable character results from facts and circumstances determined by -the law itself, and could neither be established or taken away by the simple declarations of the proprietor, whether oral or written. There is as much reason in this rule as in that of the common law which deems every person to have intended the natural consequences of his own acts.

There is no good reason for calling the statue personal because it was erected for ornament only, if it was clearly designed to be permanent. If Thom had erected a bower or summer-house of wicker work, and had placed it on a permanent foundation in an appropriate place in front of his house, no one would doubt it belonged to the realty; and I think this statue as clearly belongs to the realty as a statue would, placed on the house, or as one of two statues placed on the gate posts at the entrance to the grounds.

An ornamental monument in a cemetery is none the less real property because it is attached by its own weight alone to the foundation designed to give it perpetual support.

It is said the statues and sphinxes of colossal size, which adorn the avenue leading to the temple of Karnak at Thebes, are secured on their solid foundations only by their own weight. Yet that has been found sufficient to preserve many of them undisturbed for four thousand years (Taylor’s Africa, 113 et seq.); and if a traveler should purchase from Mehemet Ali the land on which these interesting ruins rest, it would seem quite absurd to hold that the deed did not cover the statues still standing, and to claim that they were the still unadministered personal assets of the Ptolemies, after an annexation of such long duration. No legal distinction can be made between the sphinxes of Thebes and the statue of Thom. Both were erected for ornament, and the_ latter was as colossal in size and as firmly annexed to the land as the former, and by the same means.

I apprehend the question, whether the pyramids of Egypt or Cleopatra’s Needle are real or personal property, does not depend on the result of an inquiry by the antiquarian whether they were originally made to adhere to their foundations with wafers, or sealing wax or a handful of cement. It seems to me puerile to make the title to depend upon the use of such or of any other adhesive substances, when the great weight of the erection is a much stronger guaranty of permanence.

The sun-dial stands on a somewhat different footing. It was made for use as well as for ornament, and could not be useful except when firmly placed in the open air and in the light of the sun. Though it does not appear that the stone on which it was placed was made expressly for it, it was appropriately located on a solid and durable foundation. There is good reason to believe it was designed to be a permanent fixture, because the material of which it was made was the same as that of the house and the statue, and because it was in every respect adapted to the place.

My conclusion is, that the facts in the case called on the judge of the circuit to decide, as a matter of law, that the property was real, and to nonsuit the plaintiff; and if I am right in this conclusion, the judgment of the supreme court should.be reversed.

Gardiner, C. J., and Ruggles, Selden, Allen and Edwards, Js., concurred in the conclusions of the foregoing opinion.

Johnson, J. (Dissenting.)

If upon the facts, which are undisputed, the plaintiffs were entitled to an absolute direction in their favor, it will be unnecessary to look further into the case, for the other alleged errors could not have prejudiced the defendant. The statue and sun-dial were originally personal property. To lose that character they must have been annexed or attached in some sufficient manner to the freehold. If they have never been so annexed or attached, .then they retain their chattel character, and were subject to sale on execution as personal property. The question, then, is, whether their resting by their own mere weight upon substructures prepared for their support, but to which they were not in any manner fastenéd or attached, is in the sense of the law an annexation or affixing to the freehold. The law, in respect to fixtures, was so completely examined in Walker v. Sherman (20 Wend., 636), that it is unnecessary again to go over the cases there considered. (See also Elwes v. Mawe, in 2 Smith's Lead. Cas., 99, and cases there cited.) The general rule requires physical annexation to the freehold. To this rule there are some, exceptions under the head of constructive annexation, as the deeds of an estate, the chest containing them, deer in a park, fish in a pond, doves in a dovecote; so also the keys of doors, locks, windows and articles of the like nature, which form as much a part of the structure of a house as the walls, although not annexed to it at all, or not in such a manner as to be incapable of removal without injury to the house. These are incidents io the house, and from the nature of their use can be no otherwise annexed to it without the entire subversion of the purpose for which they are intended. But this class of exceptions does not, in the reason of the rule, nor according to the decided cases, extend to articles merely of ornament not physically annexed to the soil. I have been unable to find any case at common law, or any statement in any text-book, upon the precise case of a, statue; though it would seem that the question must, in England, frequently have arisen in practice, and if it forms an exception to the general rule, it is not a little singular that no mention is anywhere made of the fact.

It seems clear that a statue of ordinary size, standing upon a movable pedestal in a house, would not pass by a conveyance of the house, any more than a porcelain vase or any other ornamental article of furniture. Nor do I think if the same statue were set out of doors it would thereby lose its character of personalty. The mere difference m weight between such a statue and that in question does not seem to me a sufficient ground on which to establish a different rule. It stands for ornament alone, and is not fastened to the freehold, and its character must depend upon the general rule.

The principles of the common law and the cases respecting fixtures have been lately considered in the Queens Bench, in Wiltshcar v. Cottrell (18 Eng. L. and E. Rep., 142). The action was trover by the purchaser against the vendor of certain lands, to whom they had come by devise, for certain staddles, a threshing machine and a granary, all which had been put upon the land in the time of the devisor. The staddles were erections for the purpose of supporting ricks, and were stone pillars, mortared to a foundation of brick and mortar let into the earth, with stone caps' mortared on the pillars. As to these the court said, “ it is clear that ¡such erections would pass under the conveyance, either as: part of the land or as fixtures.” The threshing machine fixed by bolts and screws to posts which were let into the ground, and the machine could not be got out without disturbing some of the soil. Of this the court said, “ being so attached to the land it would clearly pass under the conveyance.” The granary was laid on a wooden foundation, supported by staddles, and it lay upon them in the same manner that the ricks lay upon the rick staddles. The part above the stone caps was wood with a tile roof. In removing this granary, the caps of the staddles and the upright stones were taken away; but it appeared that it was not attached, except by its weight, to the staddles, and it was proved that by sufficient power it might have been' lifted from the staddles, without, disturbing them. The court said : “We think that we are bound by the authorities to consider such an erection as a mere chattel, and neither as part of the land nor affixed to the freehold. In Culling v. Tuffnal (Bull. N. P., 34), a bam erected on pattens or blocks of wood, but not itself affixed in or near to the ground, was held to be removable. The custom of the country was relied on in that case, as making such erections removable by an outgoing tenant; but Lord Ellenborough in the great case of Elwes v. Mawe, in referring to Culling v. Tuffnal, treats the barn as having been clearly removable without any custom, because it was not a fixture at all, as not being fixed in or to the ground. In Wansborough v. Maton (4 Ad. and, El., 884), it was decided that a bam resting by its mere weight on a brick foundation was not a fixture, but was a mere chattel for which trover might be brought. Patteson, J., referred in that case to The King v. Otley (1 B. and Ad., 161), where it was held that a windmill resting by mere weight on a foundation of brick was not a part of the freehold so as to contribute to the value of the tenement. In The King v. Inh. of Londonthorpe (6 T. R., 377), it was held that a windmill not attached to the ground, but constructed on cross-trees laid upon brick pillars, but not attached thereto, was a mere chattel. On these authorities we think that the granary in question must be treated as a mere chattel and not as a part of the land.” I think if we break down the general rule that requires actual annexation to the land as the first requisite to the establishment of the proposition that a particular chattel has become a part of the freehold, and allow the necessary exceptions which now exist under the name of constructive annexations to be enlarged upon an actual or presumed intent in the owner, that a chattel shall be a part of and' go with the freehold, we shall much increase the uncertainty which even now exists in respect to the question of fixture or not, and shall be more likely to defeat the real intentions of parties, than we shall be by adhering firmly to the established general rule. The rule of the civil law was substantially the same: “ Statues placed on bases of masonry, pictures fixed to the walls, and lamps attached to the ceiling, are not parts of the house, because they are there not as parts of its structure, but as ornaments.” (7 Pothier's Pandects, 110.) It is true the text speaks specifically of objects in houses; but that it extends to similar objects out of doors, is shown by the special provision which is elsewhere stated as to statues from which streams of water are discharged, which are held to be parts of the house. (Same book, 107.) So also, under the provisions of the Code Napoleon, the articles in question would be regarded as personalty: “All movables which the owner of an estate has annexed to it permanently are immovables by destination.” The owner is deemed to have attached permanently to his estate movable effects, where they are fastened to it by plaster, lime or cement, or when they cannot be detached without being broken and injured or without breaking or injuring that to which they are attached. As to statues, they are immovables when they are placed in a niche made expressly to receive them, although they may be removed without fracture or injury. (§§ 524, 525.) Commenting upon these provisions, Toullier says (1 Droit Civil Francais, 12): “ Whence it follows that those which have been placed upon pedestals m houses, courts and gardens, preserve the qualities of movables.”

The judgment of the supreme court should, I think, be affirmed.

Denio, J., was also in favor of affirming the judgment of the supreme court.

Judgment reversed.  