ferred to in the will. Wigr. on W. p. 12. Hall v. Stephens. Wootton v. Redd, 12 Gratt. 196; Introd., IV. If, as already seen, the husband and wife became seized in entirety of the undivided one-seventh of the devised premises, the plaintiff is clearly entitled to a corresponding recovery of possession, if the husband had at the time of the sale any interest therein susceptible to execution. The great current of authority affirms such susceptibility; going only so far as this, however, that if the wife survive her husband, she, as such survivor, will be entitled to the whole. This theory, that the husband is possessed of a vendible interest, has for its basis that the husband, jure meriti is entitled to the possession and usufruct of the wife's real estate during marriage, which right suffers no diminution or abatement by reason of his own interest in land whereof both his wife and himself are jointly seized. Ames v. Norman, 4 Sneed, 683; French v. Mehan, 56 Penn. St. 286; Bennett v. Child, 19 Wis. 362; Freeman's Co-Ten. and Part., §§ 73, 74; 1 Wash. R. P. (4th ed.) 672; Bishop's L. M. W. 622; Stoebler v. Knerr, 5 Watts, 181. There is also abundant authority enunciative of the kindred doctrine that a husband thus jointly seized with his wife has absolute control of the property during the life of the wife and may make a valid lease during his life in his own name (Torrey v. Torrey, 14 N. Y. 430); make like lease whereon ejectment may be brought (Jackson v. McConnell, 19 Wend. 175); maintain ejectment in his own name (Topping v. Sadler, 5 Jones [N. C.], 357); bring in his own name trespass qu. cl. freg. (Fairchild v. Chastelleux, 1 Penn. St. 176); determine tenancy in his own name, and concurrence of wife not necessary (Pollok v. Kelley, 6 Irish C. L. [N. S.] 367); has a sort of interest of his own, distinct from his wife, which interest he may convey. Bishop's L. M. W., § 621. A different result from that here announced, respecting the sale under execution of the husband's interest, has been reached in Indiana. Chandler v. Cheney, 37 Ind. 408. But the court there, while correctly stating that at common law the husband had no tenancy by the courtesy in lands held in entirety, altogether ignores the important fact before adverted to, of his possessing, during coverture, the absolute control over all property of the wife, and being entitled to the possession and usufruct of her land. Certainly no less right could attach by reason of his also occupying an attitude whereby if he proves survivor he may acquire the whole estate. Hall v. Stephens. And an examination of the authorities cited in that case will scarcely support the position there assumed. Rogers v. Grider, 1 Dana, 242, surely does not, for it only adverts to the general doctrine, and holds that where an execution sale had occurred the wife's right of survivorship would not be defeated. The case of Roanes v. Archer, 4 Leigh, 550, but lightly considers the point of the vendibility of the husband's interest, and is based on Scott v. Gibbon, 5 Munf. 86, to which it refers, where it was expressly held that the husband, in consequence of an antenuptial marriage settlement, had no vendible interest whatever. Rorer on Judicial Sales, 549, apparently gives support to the Indiana case, saying: "So no separate proceeding against one of them, during their joint lives, will, by sale, affect the title to the property as against the other one as survivor, or as against the two during their joint lives." The only authorities cited in the margin to uphold the text are McCurdy v. Canning, 64 Penn. St. 39, which is controlled by special statutory provision, and French v. Mehan, supra, which expressly recognizes the doctrine that the husband's interest is vendible, citing Stoebler v. Knerr, 5 Watts, 181, and that the husband, having the entire control of the estate during his life, may convey or mortgage it during that period. And even Mr. Rorer very guardedly says, in a note to the section referred to: "We may add here, that if a sale as against the husband on execution against him can affect the possession during the joint lives of the husband and wife, it can only be so upon the principle that during that time her possession is merged in his." Search has been in vain for any common-law authority giving color to the assertion that the husband cannot, by his own conveyance alone, pass a title which shall be good at least during his life (subject to defeat, as a matter of course, by the wife's survivorship). On the contrary, in the old books, Rolle's Abr., tit. Recovery, Pl. 4, and Piggot's Treat. of Com. Recov. 72, cited in Robinson v. Comyns, Cas. Temp. Talbot, 164, "It is laid down that a husband seized jointly with his wife, whether by moieties or entireties, or seized only in right of his wife, may create an estate or freehold during the coverture, and thereby make a good tenant to the præcipe." Mr. Preston says, "This species of tenancy owes its qualities to the unity of the persons of the husband and wife. Each, in the intendment of law, has the entirety; * * ** each has a power of alienation over the entirety, subject only to the right of the other." To the same State Savings Bank v. Kircheval. effect are, 1 Bright on Husb. and W. 26; 1 Prest. Convey. 54; 1. Co. Litt. 187a, 187b; 2 Greenl. Cruise, 373; 1 Atk. 473; 2 Prest. Abstr. 43. Mr. Justice COWEN, in Jackson v. McConnell, 19 Wend. 175, after commenting on a number of authorities, among them Doe v. H., 8 Cow. 283, says that the husband alone cannot alien; ..the meaning is he cannot alien the entire estate." In Bishop's Law of Mar. Wom., vol. 1, § 622, it is stated not only that the husband's interest in the land held by the entirety is vendible under execution, but that such sale takes from him all his estate, whatever it may be in the land. And in Ames v. Norman, supra, it is distinctly held that the purchaser at execution sale takes the entire estate if the husband survives the wife. As the facts presented by the record before us do not require it, it is unnecessary to give expression of opinion going to the full extent of the authorities just cited. We only hold, in the case at bar, that the husband's interest during his life at least passed by reason of the execution sale, and that his wife surviving took that whereof they had been jointly seized. [Omitting statutory considerations.] Inasmuch as the plaintiff was clearly entitled to a recovery of one-seventh of the estate devised, the judgment which accorded to him a lesser recovery must be reversed. The matter, however, in consequence of the death of the husband during the pendency of the cause in this court, is at present of no great practical importance. With directions that the lower court do take suitable action conformably to this opinion, and also regarding the rents and profits down to the period of the husband's decease, the judgment will be reversed and the cause remanded. All concur. Judgment reversed. STATE SAVINGS BANK V. KIRCHEVAL. (65 Mo. 682.) Fixtures. In determining whether an improvement to real estate is a fixture, the inten. tion of the party placing it and the manner of placing it, are not conclusive but much depends on its object and use. As between mortgagor and mortgagee, a frame building, resting on wooden State Savings Bank v. Kircheval. blocks laid on the ground, designed as an office in connection with a mill, but detached therefrom, and intended by the mortgagor to be removed, is a fixture, although erected after the execution of the mortgage ;* and its removal will be restrained by injunction. SUIT UIT to enjoin the removal of a frame building, erected by defendant Allen on defendant Kircheval's land, mortgaged to plaintiff, and sold by Kircheval to Allen in payment of its construction, and about to be removed by Allen. The land was occupied and used for a mill, built of brick. The building in question was about three feet from the mill and only connected with it by a wooden walk between the outer doors of the buildings, was intended for an office, and was built on blocks laid on the ground. It was constructed after the execution of the mortgage, and was intended to be removed. An injunction was decreed. E. O. Hill, for appellants. B. Pike and H. K. White, for respondent. HENRY, J. The questions for consideration here are: 1st. Was the building, which it is alleged the defendants were about to remove, personal property? 2d. If not, would an action for damages have afforded an adequate remedy? It must be admitted that the law in regard to fixtures is in a somewhat chaotic state. It is frequently difficult to determine, upon principle, whether an article of property is a fixture or not. There is a most embarrassing conflict in the adjudged cases. On grounds of public policy, to encourage trade, manufactures and agriculture, many things are regarded as chattels in controversies between landlords and tenants, which would unquestionably be held as fixtures, as between vendor and vendee; and the same rule prevails between mortgagor and mortgagee, as between grantor and grantee. In determining whether a building is part of, and passes with the land, a good deal depends upon the object of its erection, the use for which it was designed. The intention of the party making the improvement, ultimately to remove it from the premises, will not, by any means, be a controlling fact. One may erect *See Hutchins v. Masterson (46 Tex. 551), 26 Am. Rep. 286; McConnell v. Blood (123 Mass. 47), 25 Am. Rep. 12; Arnold v. Crowder (81 III. 56), 25 Am. Rep. 260. State Savings Bank v. Kircheval. * * This does not a brick or a stone house, with an intention, after brief occupancy, to tear it down and build another on the same spot, but that intention would not make the building a chattel. "The destination which gives a movable object an immovable character, results from facts and circumstances determined by the law itself, and could neither be established nor taken away by the simple declaration of the proprietor, whether oral or written." Snedeker v. Warring, 2 Kernan, 178. In Goff v. OConner, 16 Ill. 422, the court said : "Houses in common intendment of the law are not fixtures, but part of the land. depend, in the case of houses, so much upon the particular mode of attaching, or fixing and connecting them with the land, upon which they stand or rest, as upon the uses and purposes for which they were erected and designed." In Cole v. Stewart, 11 Cush. 182, the building was intended by the owner to be temporary, and was built with a view to ultimate removal. In a contest between the mortgagee, whose mortgage was executed subsequent to the erection of the house, and a purchaser of the building from the mortgagor, it was held to be a fixture. In the light of these cases, and many others which we have examined, we do not regard the fact, that the building in question was erected as a temporary building, and with an intention of ultimate removal, at all decisive as to whether it became a part of the realty or not. The manner in which a building is placed upon land whether upon wooden posts, or a rock, or brick foundation, does not determine its character. As was said by PARKER, J., in Snedeker v. Warring, above cited: "A thing may be as firmly fixed to the land by gravitation as by clamps or cement. Its character may depend upon the object of its erection." In Teaff v. Hewitt, 1 Ohio St. 511, it was held that: "The intention of the party making the annexation to make the article a permanent accession to the freehold, this intention to be inferred from the nature of the article affixed, the relation and situation of the party making the annexation, the structure and mode of annexation and the purpose and use of which the annexation has been made," is a controlling circumstance in determining whether the structure is to be regarded as a fixture or not. In the case of Benjamin F. Butler, Adm., v. Page, 7 Metc. 42, SHAW, C. J., delivering the opinion of the court, said. "All buildings erected and fixtures placed on mortgaged premises by the mortgagor must be regarded as permanently |