cles to be treated as going to the executor in preference to the heir, must be fixed into the wall so as to be essential to its support. It was said by the chancellor, in House v. House, (10 Paige, 163,) that it was the intention of the legislature, by the provision there inserted, to put the executor or administrator upon the same footing as a tenant with respect to the right to fixtures. But the chancellor thought it was impossible to define, in a short sentence of three lines, what was to be considered a part of the freehold itself, or what were mere fixtures, or things annexed to the freehold for the purpose of trade or manufactures. He thought we must still go back to the common law and the adjudged cases for the purpose of ascertaining which is a substantial part of the freehold, and what is a mere fixture or thing annexed to the freehold. In that case, he held that the water wheels, mill stones, running gear and bolting apparatus of a grist and flouring mill, and other fixtures of the same character, are constituent parts of the mill, and descend to the heirs at law as real property; and do not pass to the executors or administrators of the deceased owner of the mill as a part of his personal estate.

It is quite obvious that those articles, though essential to the operation of the mill were not essential to its support. They might all be taken out and the mill would stand, though it would cease to be of any value for the purposes of a mill.

Under the head of articles annexed by the tenant for his convenience may be included, as has already been suggested, stoves put up for use. The stove is an article of prime necessity in a northern climate, and of essential utility at all seasons in the year. It is necessary for safety that it should communicate with a chimney and be attached at least by temporary fastenings. This is an absolutely indispensable article in a house destitute of a fireplace. Still it is not a fixture which the tenant cannot remove, nor is it so treated between grantor and grantee. (Freeland v. Southworth, 24 Wend. 191.) Such a stove is indeed a part of the furniture of the house, which can be removed and replaced by similar articles at pleasure. It forms no substantial part of the building, and is not essential to its support.

The legislature, moreover, have evidently treated stoves put up for use, or kept in use by a family, as a part of pesonalty and as exempt from the claims of creditors, either by way of administration or execution. Hence they are inserted in the inventory of the personal estate, but not treated as assets for the payment of debts, but ar

ticles of indispensable family use.

(2 R. S. 83, § 9.) And hence too they are exempt from execution against the tenant. (Id. 367, § 22.) If such annexations were part of the freehold, these provisions would not have been made.

The question with respect to the right to remove such annexations as are usually classed with fixtures, is not confined to controversies between the landlord and his tenant; but grows out of various other relations in life. It sometimes arises between the mortgagor and mortgagee, and sometimes between the landlord and the execution creditor of the tenant. In both respects its was noticed in Cresson v. Stout, (17 John. 116.) In that case it was held, in substance, that, as between mortgagor and mortgagee, spinning frames and carding machines in a mill, the former fastened to the upper floor by upright pieces, and having cleats nailed to the floor round the feet, and the latter fastened to the floor by wooden pins, were personal property. The same articles were also held to be liable to an execution against the tenant by whom they were put up. The doctrine of the courts in Cresson v. Stout, supra, met the approbation of the revisers, and formed a portion of the authority for some of the enactments of the legislature. (3 R. S. 727, 2d ed. Revisers' Notes.)

In Walker v. Sherman, (20 Wend. 636,) the question arose in partition, in which machinery used in, but not attached to a mill, was treated as personal property. The whole doctrine with respect to fixtures was elaborately discussed by the court, and the cases in the neighboring states examined.

In other cases the question has been examined as between vendor and vendee. (Miller v. Plumb, 6 Cowen, 665.) In this case Woodworth, J. approves the classification made by Lord Ellenborough in Elwes v. Maw, (3 East, 38,) of the parties between whom the question usually arises; 1st, between heir and executor; 2d, between the executors of tenant for life and the remainderman and reversioner; and 3d, between landlord and tenant; and cited with approbation the remarks of his lordship, that in the case between the heir and the executor the rule obtained with the most rigor, in favor of the inheritance and against the right to disannex therefrom. The other two cases he considered as belonging to the same principle; thus putting the tenant for life and for years on the like footing. But he thought the case between heir and executor and vendor and vendee was widely different. The ancestor, said the learned judge, or vendor, has the absolute control, not only of the

land, but of the improvements. The heir and executor are both representatives of the ancestor; the vendor has an election to sell or not to sell the inheritance. If he does sell, the fixtures pass. This case was decided in 1827, and before the revised statutes were enacted, and before the decision of the chancellor in House v. House, supra.

Although the legal effect of putting a building upon another's land is to make it a part of the freehold of the latter, yet the legal effect may be controlled by an express agreement. If the parties agree, in terms, that a dwelling house shall, as between them, be considered strictly a personal chattel, it takes that character. (Smith v. Benson, 1 Hill, 178, per Cowen, J.)

It is not absolutely necessary that there should be at all times a physical annexation of the article, to constitute it a part of the realty. There may be a temporary suspension of such annexation, without the depriving the article of its privilege as part of the realty. This depends on the nature of the transaction, and the intention of the parties. The cases already referred to, namely, of fencing materials and hop poles, temporarily detached from the soil, are instances in point. It has been settled, says Cowen, J. in Walker v. Sherman, supra, ever since the year books, 14 Henry 8th, 25, that the stones of a grist mill, though moved for the purpose of being picked, are still a part of the freehold, and will pass by a sale of the land.

So also, by the grant of land with the mill thereon, the waters, flood gates, &c. which are necessary for the use of the mill, pass as incident to the principal subject of the grant. (Le Roy v. Platt, 4 Paige, 77.) So doors, windows, locks, keys, window blinds, lightning rods, and the like, are treated as constructively annexed, though occasionally removed for repairs or otherwise. (Walker v. Sherman, 20 Wend. 646, 7.)

In like manner deer in a park, fish in a pond, doves in a dovehouse, charters or deeds of an estate, and the chest containing them, though never strictly annexed to the land, pass to the vendee with the deed of the land. (Idem.) They are exceptions to the general rule, and are by some authors treated as heir-looms rather than fuctures. If the vendor intends to reserve them, the deed of conveyance should contain an appropriate exception.

With respect to growing crops, in addition to what has been said under the head of emblements, (supra,) it is proper to remark, that

growing grass, fruit and trees, are parcel of the land, and go to the heir, rather than the executor. (Bank of Lansingburgh v. Crary, 1 Barb. 542. Warren v. Leland, 2 id. 613.) On the foreclosure of a mortgage, they pass to the purchaser as against the lessee of the mortgagor, whose lease was subsequent to the mortgage. (Lake v. King, 8 Wend. 584.) This is upon the principle that as between mortgagor and mortgagee, the former has no right to lease the premises, and that on the foreclosure, the mortgagee or those succeeding to him is in by title paramount, thus vesting in him not only the estate mortgaged but also the emblements. (McKercher v. Hawley, 16 John. 292. Jackson v. Hopkins, 18 id. 487. Jackson v. Dickerson, 6 Cowen, 147. Aldeck v. Reynolds, 1 Barb. Ch. 613. Shepard v. Philbrick, 2 Den. 174. Gillet v. Balcolm, 6 Barb. 370.)

The question with respect to fixtures sometimes arises between the executors of tenant for life and the remainderman or reversioner. We have already anticipated all that need be said on that subject. The same principles of public policy which encourage the industry of the tenant for years, have their application to the tenant for life.

There is sometimes a question in regard to estates for years, whether the tenant have an interest in the estate or be only a servant or laborer. In Jackson v. Brownell, (1 John. 207,) it was held that letting land for one year, to cultivate upon shares, creates the relation of landlord and tenant, and raises the lessee from the rank of a laborer or servant to that of a tenant. But if land be let upon shares for a single crop, it does not amount to a lease, and the owner of the land alone can bring an action for injury to the crop. (Bradish v. Schenck, 8 John. 151.)

The letting of land on shares is not technically a lease. In such a case the parties are tenants in common of the crops. (Caswell v. Dietrich, 15 Wend. 379.) But where in the letting for a number of years, the tenant rendering and paying one half the crops as rent, the interest in the soil passes to the tenant. In such a case the interest in the crops until an actual division is made, is in the tenant, and the crops belong exclusively to him. (Stewart v. Doughty, 9 John. 108. Caswell v. Dietrich, supra.)

It is proper to add, in this connection, that the present constitution of New York provides that no lease or grant of agricultural land for a longer period than twelve years, thereafter made, in which

shall be reserved any rent or service of any kind, shall be valid. (Constitution of 1846, art. 1, § 14.)

There are two other incidents of estates for years, or for life, which will be briefly noticed in this place, viz. a surrender and a merger. A surrender is defined by Coke to be a yielding up of an estate for life or years to him that hath an immediate estate in reversion or remainder. (Co. Litt. 338 a.) It can only be to the person who has the reversion or remainder. (Springstein v. Schermerhorn, 12 John. 357.) Where the land is leased in fee there can be no technical surrender, because there is no party having the reversion or remainder who can take it. (Id.)

If, however, the lessee, during the term in such a case, accepts a new lease of the same premises from the lessor, the first is deemed virtually surrendered or released, because the acceptance admits the power of the lessor to lease, which power he could not legally have without a surrender or release; but this presumption, it is said, cannot be indulged against common sense. (Id. Van Rensselaer v. Penniman, 6 Wend. 569.) The acceptance by the tenant of a new lease of the same premises from the same lessor, has been said by the court to be a virtual surrender in law of the first lease. (Livingston v. Potter, 16 John. 28.)

The statute provides for the case of tenants who have under leases from a tenant surrendering to the chief landlord, for the purpose of having a renewed lease, and prevents their rights from being infringed by such surrender. It provides that the new lease to be made by the chief landlord shall be good and valid, without a surrender of the under leases derived out of the one surrendered. It provides that the chief landlord, his lessee and the holders of such under leases, shall enjoy all their rights and interests in the same manner and to the same extent as if the original lease had been continued; and it gives to the chief landlord the same remedy by entry upon the demised premises for the rents and duties secured by such new lease, so far as the same do not exceed the rents and duties reserved in the original lease so surrendered. (1 R. S. 744, as modified by ch. 274 of L. of 1846. 3 R. S. 34, § 2, 5th ed. Conkey v. Hart, 4 Kernan, 22.) The subtenants are not injured, because as to them their rights continue as if the original lease, out of which their estate is derived, had remained unaltered and in force. It is also a virtual recognition of the right of the tenant to surrender to the landlord, whatever may have been the nature of his lease.