
    *Raymond against White.
    NEW YORK,
    May, 1827.
    As between tenant;'propel demtoedt0 ^ mises by the mlnufacturin” purposes, is perty^and^betenantt0 tlie
    A conveyhTdl by the not carry such grantee as purtenant to
    ture, appurtenant to premises on which thevendor^has Ren for the n^fi^wro™-" andthe vendee recovers, in an i^ury; that a court of equity wouldr compel him to assign the judgment to the vendee, if the residue of the property was insufficient to satisfy his demand.
    Trespass guare clausum fregit, et de bonis asportatis, for entering a tannery, in the possession of the plaintiff, and carryin§ away a cylindrical heater, used for applying heat to tanner’s bark, in vats and leaches; tried at the Saratoga circuit, in June, 1826, before Walworth, ,0. Judge.
    On the trial, it appeared that Dean Chase owned the tannery, and mortgaged the same to Samuel Cook; and, on the 18th of August, 1822, released to cook the equity of redemption in the premises ; that on the 23d of August, Cook articled to sell the tannery to Joseph Chase, on p¡s paying the purchase money, and performing certain other conditions in the agreement mentioned; that J. Chase *nto possession, under the agreement, and purchased the heater, and placed it in the tannery, in a leach, or vat, which was altogether detached from the building, except p^ a smau piece of board was tacked with nails to the í vat and to the side of the building; but there was no neceggp.y for fastening the vat; and the fastening mentioned, Was of no use, except to keep the side standing while the vat was put together; that previous to February, 1823, Chase abandoned the premises without paying the purchase money; and on the 1st of February, 1823, Cook conveyed tannery, with its privileges and appurtenances, to the -plaintiff: and shortly afterwards, the sheriff, acting under .. . . . , the direction of the defendant, entered the tannery, and levied upon the heater, on an execution against Joseph Chase, and took away and sold the same.
    Cook was offered as a witness for the plaintiff; but was objected to ; and upon his voir dire testified, that he had not, to his knowledge, any interest in the event of the cause; that the plaintiff had not paid him the purchase money, and he still had a claim on the premises therefor.
    *The judge decided that the witness was incompetent; that if a recovery was had, Cook would, in equity, be entitled to the judgment, to satisfy the purchase money, if the residue of the property should prove insufficient.
    The judge also decided, that the heater was personal property; and liable to be taken on the execution against Chase; that, as between landlord and tenant, fixtures put in by the tenant, were personal property, and belonged to the tenant; but when fixtures are put up by the person who is the owner of the realty, they become a part thereof; and go to the purchaser of the real property, or the heir at law, and are not liable to be sold, as personal estate, on execution; but in this sense, those things only could be considered fixtures, which were necessarily attached to the freehold, for the purpose of using them; that an article casually attached to the freehold, when such attachment was not necessary to the use of such article, would not make real property of that which was, in its nature, personal.
    The plaintiff submitted to a nonsuit; with leave to make a case, and apply for a new trial.
    
      S. G. Huntington, for the plaintiff,
    moved for a new trial, on the ground that the heater was real property, and belonged to him, as being attached to the freehold when he purchased. He also insisted, that the judge erred in rejecting the testimony of Cook.
    
      J. L. Veile, contra.
    The heater can no more be considered attached to the premises, than any of the tools belonging to the tannery. But, if otherwise, Chase was a mere tenant at will, or from year to year. He had no title; and might-remove, the fixtures, as personal'property. (1 Taunt 19; 3 East, 38; Toll. L. E. 197, 8; 2 Stew. N. P. 1273, 4, 5; 6 John. 5; 20 John. 29.) It follows,: that they might be levied-on,, by - execution, against him. (Imp. Sheriff, 133, and the cases there cited.)
    The plaintiff..claimed title under- Cook, who was there- ■ fore,-.an incompetent witness. (6 John. 5.). He was called= to .support .the title of. his .vendee..
   * Curia, per Savage, Ch. J.

It does not appear that J, Chase ever owned the tan yard. He. made a conditional agreement to purchase; but, upon what, conditions,. and whether those conditions were ever performed, does, not appear. It, is. presumed they were not, as the purchase money was never paid, and Chase afterwards abandoned the premises. He must, therefore, be considered as a .tenant to Cook, either from year to ypar, or at will; he was the owner of the heater, but, not of the land; and,.admitting it to have been a fixture, it remained personal property/ But it was not so attached to the freehold, as to make it a part of the realty, .even if the person who placed it there had owned the tannery. (Miller v. Plumb, 6 Cowen, 665; Cresson v. Stout, 17 John. 116.)

According to the case of Heermance v. Vernoy, (6 John. 5,) Cook was interested, as warranting the title of the heater to the plaintiff, if he sold it to him as personal property. But if the plaintiff’s claim upon it is, simply, on the ground of its being appurtenant to the tan yard, Cook was not liable therefor, by reason of his conveyance, unless there was an actual warranty ?

Was Cook interested; then, in the mode" suggested by the judge T -Clearly not, unless the heater was attached to. the freehold, and"passed with it. If it was a part of 'the realty which he had conveyed, and upon which he had a lien for the purchase money, a court of equity would probably compel the plaintiff to assign over the recovery to Cook, whose lien was diminished by a part of the property being carried off; provided the premises were. thereby rendered insufficient to pay the demand. In this case, however, it does not appear that Cook was *nofc amply secured by his lien on the residue. That should have been shown, to bring the case within the rule laid down at the circuit. But as the heater, upon the evidence given, was clearly personal property, Cook’s lien could not be affected. He was, therefore, a competent witness; and, on that ground, the nonsuit should be set aside, and a new trial granted.

Buie accordingly. 
      
      
         The facts, on this point, as they appeared before the supreme - court, are materially variant from those on which the witness was rejected at the trial. At the circuit, it appeared that the plaintiff had only Cook’s agreement for a conveyance, on payment of the purchase money at a future day. He claimed the heater as part of'the real- property-of which he was in possession-under tlie agreement. The judge decided,- that the-purchase money-being unpaid„and.tiie title remaining.in Cook, a recovery for. an.injury to the. freehold, would, in equity, belong to him, if the purchase money should not bo paid; and, therefore, he had a direct interest in establishing the right to recover.
     