McDavid v. Wood

• Citation: 52 Tenn. 95
• Parties: Martha McDavid and others v. Mary A. Wood, Adm'x.
• Decision Date: 30 April 1871
• Court: Supreme Court of Tennessee

52 Tenn. 95

Martha McDavid and others

v.Mary A. Wood, Adm'x.

Supreme Court of Tennessee.

April Term, 1871.

FROM DYER.

Appeal from the Chancery Court at Dyersburg. J. C. MUSE, Ch.

RICHARDSON for Complainants.

S. R. LATTA for Defendant.

NICHOLSON, C. J., delivered the opinion of the Court.

W. C. McDavid died in Dyer county, Tenn, in 1858, the owner of an interest of one-fourth of a steam saw-mill, with all its machinery and appendages. The only question in the case before us is, whether his interest in the saw-mill descended to his heirs as realty, or whether it went to his personal representative as personalty.

The facts, as proven by two of the part owners of the mill, are as follows:

The mill was erected on W. C. McDavid's land by W. C. McDavid, A. R. McKnight, W. N. McKnight, and A. C. Crockett, equal partners, each owning one-fourth. The understanding with W. C. McDavid was, that he furnished the mill-yard as a lease for five years, or as long as the partners wished to run it there. The mill, etc., however, was not to be esteemed a fixture, but the owners could remove it when and where they should think proper. W. C. McDavid never considered the mill a fixture.

The building was a frame, 24 by 64 feet, one story of 10 feet, the frame resting upon wooden blocks.

By the common law everything that was affixed to the freehold was subject to the law governing the freehold. The result of a long continued system of judicial legislation is, that the right of removal of fixtures may now be regarded as the general rule, instead of the exception. The common law rule is relaxed much more readily in favor of tenants, who have affixed things to the freehold, than in cases arising between executor and heirs, or vendor and vendee. In regard to the former, it may be laid down, as a general rule, that things which the tenant has affixed to the freehold for the purposes of trade or manufactures may be removed when the removal is not contrary to any prevailing usage, or does not cause any material injury to the estate, and which can be removed without losing their essential character or value as personal chattels, 2 Kent, 409. But, in the case before us, the question is assumed to be between the executor and heir, and, in such case as already intimated, the common law rule obtains with the most rigor in favor of the inheritance, and against the right to consider a a personal chattel anything which has been affixed to the freehold. Mr. Kent says that the character of the property, whether personal or real, in respect to fixtures is governed very much by the intention of the owner, and the purposes to which the erection was to be applied. And in a late case decided in Pennsylvania, the Court said: “The question of fixture or not depends on the nature and character of the act by which the structure was put in place, the policy of the law connected with its purpose, and the intention of those concerned in the act.” 1 Amer. Rep., 372.

Mr. Redfield (vol. 2, p. 146) lays it down as an established rule, in controversies between the executor and heir, “that...