
    [Philadelphia,
    January, 16,1836.]
    WHITE against ARNDT.
    IN ERROR.
    1. Even as between landlord and’ tenant, fixtures erected by the latter and which he is entitled to remove, must be removed during the term; after the expiration of the term, the tenant can neither remove them nor recover their value from the landlord.
    2. This rule prevails more strictly between tenant for life or his lessee, and the remainder man; the latter of whom is not bound by any agreement between the tenant for life and his lessee, under which the lessee may have erected buildings on the land.
    3. The acceptance of rent from the lessee by the remainder man, will not be deemed a ratification of such agreement, where it is collateral to the lease, and it does not appear that the remainder man was apprized of it.
    Writ of error to the Court of Common Pleas of Northampton county, to remove the record of an action in which Abraham Arndt was plaintiff, and William White, defendant.
    The material facts appeared to be as follows: Jacob Arndt devised Jo his wife for the term of her life, a brick store, a stone house, and two lots of ground, in the borough of Easton, with remainder in fee to Abraham Arndt, the plaintiff. The widow after-wards married William A. Lloyd, w7ho, with his wife, demised the premises to William White, for the term of three years, from the 1st day of July, 1829, at the rent of 300 dollars per annum. Mrs. Lloyd, the tenant for life, died about .the 25th December, 1829. White, the defendant, continued to occupy the premises, and paid rent quarterly, to the plaintiff, until the 1st of April, 1832. The premises were sold by the plaintiff at public sale, on the 23d of February, 1832.
    The present action was originally instituted before a justice of the peace, to recover the sum of seventy-five dollars, being one quarter’s rent of the premises due on the 1st of April, 1832. After hearing, the justice rendered judgment for the full amount of the plaintiff’s demand. The defendant having appealed to the Court of Common Pleas, the defendant declared in assumpsit; and issue having been joined on the plea of non assumpsit, the cause came on for trial on the 27th of January, 1835. The plaintiff having proved the occupation of the premises by the defendant, during the term of three months, and the amount paid by him for the preceding quarters, the defendant offered to prove, in substance, that with the knowledge and approbation of Mr. and Mrs. Lloyd, he had erected upon the lot of ground, a frame stable, and two frame shops, and had made other improvements of the property; that it was agreed between them (the said Lloyd and wife, and White,) that White was to have the liberty of selling or removing the stable, and that the shops were to he taken by the owners of the lots at a' valuation, or if a valuation could not be agreed upon, that he was to have the privilege of removing the materials: That when the premises were put up at public sale, he requested the crier, by a written paper, to give notice of his claim, but the plaintiff’s agent refused to permit the notice to be read: That the purchaser took possession of these buildings, with the other parts of the property, and still retains them.
    The plaintiff’s counsel objected to this evidence, and the court refused to receive it; upon which ,a bill of exceptions was tendered; and the jury having found for the plaintiff, the record was removed to this court.
    The only question argued was the admissibility of the evidence in the court below.
    Mr. Brooke, for the plaintiff in error,
    contended, that the buildings were the property of White, the lessee, and that he had a right to remove them. There are few cases in this country on the subject of the right of a tenant to erections made by him; but the general doctrine is believed to sanction the defence. In Whiting v. Brastow, (4 Pickering, 310,) it was said by the court, that according to the decisions, a tenant for life or years, or even a tenant at will, may, at the expiration of his estate, remove from the freehold all such improvements as were erected or placed there by him, if by such removal the premises shall not be put in a worse plight than when he took possession. The same law was recognised in Doty v. Gorham, (5 Pickering, 487,) and it was there said that “ had the landlord determined the estate, the tenant would have been entitled to sufficient time to remove his shop and other property.” 17 Mass. Rep. 282, 1 Pickering, 43, Van Ness v. Packard, (2 Peters’ Rep. 137.) The cases are collected and digested in the recent Treatise of Amos & Ferrand; where it clearly appeal’s that buildings like those erected by the plaintiff in error are r|movable. — ■ [Kennedy, J. There is very little doubt about the right of the tenant to remove certain species of buildings; but the question here is, whether, if he neglects to exercise the right while he is in possession, he can make defence to an action for rent that the landlord has had the benefit of theml] We contend that the plaintiff below derived a substantial benefit from our buildings, by the increased price he received from the purchaser; and therefore we have an equitable defence. There was an express agreement with Lloyd, the tenant for life, which the plaintiff must be supposed to have sanctioned by continuing the defendant as tenant. The case of Downing v. Baldwin, (1 Serg. Raiole, 298,) which will be cited on the other side, decided that mere denial of a right does not constitute a disturbance of that right. Here there was not only a denial of the tenant’s right, but a conversion of his property to the use of the landlord.
    Mr. Porter, for the defendant in error.
    The true question is, whether a lessee can take defence on the ground of a contract with a former tenant for life, to the prejudice of the .remainder man, his landlord. All the evidence offered here was of res enter alios acta. The law upon this subject is well settled, as will appear from the cases collected in 4 Bac. Ab. tit. Leases, (I.) Whatever may have been the right of the defendant to remove the buildings during the existence of the tenancy, it furnishes no ground of defence in this action. Unliquidated damages cannot be set off, Kachline v. Malhallon, (2 Dali. 237, S. C. 1 Yeates, 571.) It is alleged that the purchaser has refused to permit the buildings to be removed. If so, the defendant may possibly recover against him by an action of trover; but the mere circumstance of the plaintiff’s agent having refused to allow the defendant’s notice to be read at the sale, will not, according to the case of Downing v. Baldwin, make him liable to the defendant.
   The opinion of the court was delivered by

Rogers, J.

It is a general rule of the common law, that whatever is ánnexed to the inheritance during the tenancy, becomes so much a part of it, that it cannot be removed by the tenant, although the improvements may have been made at his own expense. As in Warner v. Fleetwood, 4 Rep. 63, glass put in by the tenant, or wainscot fastened by nails, was held part of the inheritance. To this rule there are certain exceptions, nearly as old as the rule itself, as between landlord and tenant, that whatever buildings or other fixtures are erected for the purpose of carrying on trade or manufactures, may be removed by the tenant^ during the term. The cases upon this sul^eet are collected by Lord Ellenborough, in Elmes v. Maw, (3 East, 38,) and by Mr. Justice Story, in Van Ness v. Packard, (2 Peters’ Rep. 145.) As to substantial improvements, they are usually made a consideration for extending the term of the lease; or some collateral agreement is made, so as to allow of some compensation to the tenant. The latter was the course adopted by the ■ parties to this contract. The tenant, White, erected on the premises, several improvements, among which was a stable, and two shops, which it is said, greatly enhanced the value. It was agreed at or about the time of the erection of these improvements, between White and Mr. and Mrs. Lloyd, who had an estate for life, that White was to have the liberty of selling or removing the stable, and that the barber’s shop, and other small buildings erected by him were to be taken at a valuation; and that if a valuation should not be agreed on, White was to have the privilege of removing the materials of the shops. As between the parties to this contract, this agreement was a good consideration; and any violation of it on the part of Lloyd, would have subjected him to an action. And I am inclined to believe, on the authority of Van Ness v. Packard, that if the estate of Lloyd had continued until the end of the term, White would have had a right to remove the buildings from the premises, without the consent of the owner of the remainder, notwithstanding the general principle, that whatever is annexed to the freehold, becomes part of it, and cannot afterwards be removed, except by him who is entitled to the inheritance. The exception in favour of trade, which is founded on public policy, and intended to encourage manufactures and the improvements of the country, may well apply to this case; for the question does not depend, upon the size or form of the house, or the manner in which it is built; but the only inquiry always is, whether it was intended for .purposes of trade or not; and I cannot believe that the nature of the business, whether agricultural or mercantile, can make any difference. But while these principles are conceded, I am unwilling to extend them beyond the duration of the estate which the tenant for life has in the premises, so as to subject the owner of the fee to payment for the buildings, or to compel him to allow them to be removed. In the case at bar, Lloyd’s interest was in right of his wife, who had a life estate. On her death, the interest in possession vested in Arndt, the owner of the remainder in fee.

The death of Mrs. Lloyd put an end to White’s lease. Now, there is no principle better established by authority, than that, even, as between landlord and tenant, fixtures must be removed during the term. After the term they became inseparable from the freehold, and can neither be removed by the tenant, nor recovered by him as personal chattels, by an action of trover, or for goods sold and delivered. 1 Atk. 477, ex parte Quincy. 3 Atk. 13 Lamb, v. Lamb, and the note. 2 Peters’ R. Lard Dudley v. Lord Ward, Ambl. 113, Co Lit. 53 a. Brooke Waste, 104, 142. Cooper’s case, Moore 177. Day v. Bisbitch, Cro. E. 374. Lord Derby v. Asquith, Hob. 234. 4 Term, Rep. 745. 7 Term, Rep. 157.

It has been contended by the counsel for the plaintiff in error, that the tenant for life can bind the remainder man by contract, so as to compel him either to pay for improvements which enhance the value of the property, or to permit them to be removed when it can be done without injury to the inheritance. For this position, they rely on Whiting v. Brastow, (4 Pickering, 310,) in which it is ruled, that a tenant for life, years, or at will, may at the determination of his estate remove such erections, &c. as were placed on the premises by himself, the removal of which will not injure the freehold, or put the premises in a worse plight than when he entered. In Whiting v. Brastow, the tenant removed a padlock used for securing a binn house, and moveable boards fitted and used for putting up corn in binns. That was a case between landlord, and tenant, and not between tenant for life and the remainder man; the rule being that, as between the latter, in questions respecting the right to what are ordinarily called fixtures, as between tenant for life or in tail and the remainder man or reversioner, the law is considered more favourable than between landlord and tenant. It is construed most strictly between the executor and heir, in favour of the latter; more liberally between tenant for life, or in tail, and the remainder man, or reversioner, in favour of the former; and with much greater latitude between landlord and tenant, in favour of the tenant. A distinction arises, also, between the cases, from the nature of improvements. In Whiting v. Brastow, the court treated the improvements as personal chattels; but this cannot be said of these erections which ■ are of a permanent substantial kind, and which surely would not have gone to the executors of Mrs. Lloyd, if the buildings had been erected by her. It would have been waste in the tenant to have removed them; for it is in general true, that when a lessee having annexed any thing to the freehold, during his term, afterwards takes it away, it is waste. Co. Lit. 53. Moore, 177, 4 Co. 64. Hob. 234.

Doty v. Gorham (5 Pickering, 487,) merely decides that a shop placed on the lands of the plaintiff, with his permission, was a chattel, and as such may be sold, on an execution against the owner and that the purchaser has a right to enter on the land and remove the shop. This principle it is not necessary to controvert, as the application of it is riot perceived.

It must be remarked, that the agreement does not purport to bind Arndt, the owner of the remainder in fee, and seems to have been made under the belief and with the wish, that the life interest would last as long as the lease, which was but for three years. But if the intention were to bind him, the objection arises, that it is not competent for them to make an agreement, to affect the inheritance. On the falling in of the particular estate, the remainder man or reversioner-is entitled to all the improvements, which the law denominates fixture's, without regard to the manner they are constructed, the persons who may have erected them, or whether they may contribute to enhance the value of the property or not. If the tenant for life, or the person .with whom he contracts, wishes to avoid the consequences, the improvements must be removed during the continuance of the first estate; or the assent of the remainder man, or reversioner, must be obtained. There is nothing which shows any assent to the agreement by Arndt. The deposition of Lloyd proves nothing further than that the rent was made known to Arndt, and that he made no objection against White being the tenant for the remainder of the lease. But not a word was said, so far as appears, about this agreement. It is in general true, that where there is a lease for years, and by consent of both parties the tenant continues in possession afterwards, the law implies a tacit renovation of the contract. But that principle cannot fairly be made to apply to this case; for here, although the lease terminated at the death of Mrs. Lloyd, and the teuant continued in possession with the consent of Arndt, yet that would bind the parties to nothing more than what came within the terms of the lease. It would not include the case of a collateral agreement, independent of the lease itself. The agreement on which this case turns, was a collateral agreement, of which it does not appear that Arndt was in any manner apprized, or to which there is not the slightest evidence he assented, either directly, or by necessáry implication.

Judgment affirmed.  