Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Mrs. Daniel Fisher, and her husband for her interest v. William Dixon, one of the general disponees and executors of William Dixon, deceased [1845] UKHL 4_Bell_286 (26 June 1845)
URL: http://www.bailii.org/uk/cases/UKHL/1845/4_Bell_286.html
Cite as: [1845] UKHL 4_Bell_286
[New search] [Printable PDF version] [Help]
SCOTTISH_HoL_JURY_COURT
Page: 286↓
(1845) 4 Bell 286
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND. 1845.
No. 16
v.
[Heard
Subject_Legitim. — Heritable and Moveable. —
Held, that machinery erected by a proprietor of land upon the land, and attached directly or indirectly to it, for the purpose of working the minerals under the land, (including in the machinery loose articles not physically attached to the fixed engines but necessary for their working, and so constructed as to form parts of the particular machinery and not to be capable of being applied to any other engines,) was heritable in a question between the heir of the party who erected the machinery and his other children claiming their legitim, without regard to the circumstance of the fixed machinery being capable of being removed without material injury, or to the view which the deceased had taken of the machinery as being heritable or moveable, or to the circumstance of the land having been purchased by the deceased with the view mainly of working the minerals under it, and of the machinery forming part of his stock in trade as a coal and ironmaster.
Subject_Legitim. — Heritable and Moveable. —
Held, that the machinery in an iron foundry erected by the proprietor of the ground on which it was built, in performance of a covenant in that behalf contained in a lease granted by him to a company, of which he himself was a partner, was heritable in a question as to legitim.
Subject_Legitim — Heritable and Moveable. —
Held, that machinery erected by a tenant and removeable by him at the termination of his lease, was moveable in a question as to legitim.
William Dixon, the father of the parties, died, leaving a will whereby he gave his whole estate, real and personal, to his two sons, (John Dixon, his eldest son and heir, and the
Page: 287↓
During the latter years of the testator's life, he had been engaged in extensive business as a coal and iron-master, his outset in life having been in the same business, but in subordinate capacities. At his death the testator was possessed of the following properties, of which the history is subjoined to each:—
This property consisted of a lease of the Calder colliery, and of a feu of twenty-five acres of land, part of the estate on which the colliery was situated. The feu had been obtained for the purpose of erecting steel and iron works. After these works had been erected, a firm of Creelman and Dixon, the testator being one of the partners, purchased the premises and feu right, and carried on extensive business in them as iron-masters. Ultimately the testator purchased the rights of Creelman in the premises, and continued the business on his own account, until the period of his death. At this time the whole feu was covered with buildings of one kind or another necessary for
Page: 288↓
This property consisted of an absolute right to the coal in the lands of Little Govan; a leasehold right to the surface of the lands, and an assignation to machinery and engines used for the purpose of a colliery. These different rights had originally been conveyed to a company of coal-masters, of which the testator was a partner, by a deed of disposition and assignation on which sasine was taken, and they were afterwards purchased from the company by the testator, who continued the business of a coal-master on the premises, until the period of his death, at which time there was also on these premises a variety of machinery, the testator having considerably added to what was upon them when he purchased from the company.
This property consisted of an absolute right to the lands and Barony of Faskine, and of buildings, steam-engines, and machinery used for the purpose of a colliery in working the coals under the lands. The lands and the colliery had been originally purchased by a company of coal-masters, of whom the testator was one, and had been purchased from the company by the testator, who continued to work the colliery till his death.
This property consisted of the absolute right to about 450 acres of very inferior land, and the buildings and machinery necessary for a coal and iron work. The works had been discontinued some time prior to the testator's purchase, and the working was not renewed by him in his lifetime.
The testator was tacksman of this colliery, under a lease
Page: 289↓
The testator held a lease of these works as the solvent partner of a company, consisting of himself and another, under the firm of the Balgrochan Mineral Company. The testator carried on the business until the period of his death, and at that time there were engines, machinery, utensils, and railroads upon the premises.
This property consisted of a piece of ground which the testator held under a feu right, and upon which he had erected the buildings and machinery necessary for an iron foundry, under the stipulations of a lease, which he had granted to the Glasgow foundry company, consisting of himself and two other individuals, his interest in the concern being in the proportion of four-ninths. One of the conditions of the lease was, that the company should pay the testator interest on the cost of the works, and leave them in good order at the termination of the lease.
The appellants in a condescendence, stated the different items of which the testator's estate consisted, and founded upon entries in the testator's books, as showing his opinion of the nature of the different parts of his estate, whether as being real or personal, and they pleaded in law:—
I. The trade or employment of manufacturing iron or lime and of digging coals to be used in these manufactories or for sale, or in other words the trade of a coal-master, or ironmaster, or lime-worker, is of a personal nature, and all instruments, engines and utensils, whether fixed or loose, which are necessary and subservient to such a trade, are legally to be held and treated as personal or moveable effects or personalty.
Page: 290↓
III. The fund in medio, out of which legitim is payable, consists of the whole moveable or personal estate as before described, that belonged to the deceased Mr. Dixon.
The respondent on the other hand gave a very long and minute enumeration of the different articles of machinery, and utensils which were upon the several premises, and pleaded in law:—That the articles upon which the appellant had condescended, did not form part of the testator's executry funds, but formed part of his heritable estate by destination, or by accession, or by being otherwise pars tenementi.
The Lord Ordinary, ( Moncrieff,) remitted to Mr. Smith, of the Deanston Works, to report generally, and particularly on the nature, character, construction, position and uses of the machinery, and other subjects specified in the condescendence, and specially,
“(1.) Whether the steam-engines are so fixed to the ground or building that they cannot be removed without great destruction to the building, or without great destruction to the engines themselves; and what is the practice at coal and iron works similar to those of the deceased, as to the removal of such engines and machinery?
(2.) What is the comparative value of the engine, with all its appurtenances, with reference to that of the building to which it is attached?
(3.) What would be the value of the engine removed, supposing that it can be removed without destruction, compared with the value of it as it stands in the premises, without reckoning the building?
Page: 291↓
These heads will necessarily embrace the expense of any such operation.
(5.) What is the state of the other subjects not making proper parts of the steam-engine in respect of the four particular points above enumerated, or in any other points whereby they appear to be more or less fixed to the premises, or to the engines?
(6.) How far the articles condescended on, which may appear to be actually moveable, as not being at all attached to the premises or the engines, are all or any of them essential to the going of the works; how far, if taken away, their place could be readily supplied by other articles of the same nature and description; and how far they may or may not be of more value where they are, or were at Mr, Dixon's death, than if they had been sold or taken to another work of the same “kind?
(7.) What is the practice, as between landlord and tenant, of coal-fields, collieries, or iron works, with regard to the removal of steam-engines and machinery at the end of a lease, when such engines are of the description that belonged to the deceased? How far is the landlord, in practice, held entitled to retain, or the tenant to remove such engines, implements and machinery, where no positive agreement has been made on the subject?
(8.) How far the different subjects referred to in the preceding articles could be removed without being taken asunder?”
Mr. Smith made an elaborate report descriptive of the different articles forming the subject of dispute. From this report it appeared that there were different steam-engines on the
Page: 292↓
After giving minute description of the different articles to be reported on, Mr. Smith answered the special subjects of inquiry referred to him in the order in which they were put by the Lord Ordinary, and in these terms:—
“(1.) On this head the reporter has to state, that the whole mechanism of the steam-engines can be removed without great destruction to the buildings, and without great destruction to the engines themselves.
The expense of removal and re-erection has been already stated in describing the different kinds of engines. On reference to the preceding specific descriptions of steam-engines given by the reporter, the Lord Ordinary will perceive that the reporter considers the buildings to be essential parts of the general structure of the engines. They are always erected
Page: 293↓
The practice at coal and iron works similar to those of the deceased, is to remove the mechanism of the engines and other machinery from one part of the premises to another as occasion may require. The building or masonry is generally left, as in most cases it would be unprofitable to remove it, and of course it could not be removed without reducing it to the original materials, and with considerable waste or destruction.
(2.) The reporter has already, in describing the different engines, stated the comparative values of the machinery and buildings, and the same proportions are applicable to engines of greater or less power than those specified.
(3.) The value of the engine itself would not be materially affected by its removal, excepting in so far as the cost of taking down and re-erecting, which has been already estimated in reference to the three classes of engines.
(4.) There would be no appreciable deterioration of the building, or of any of the occasional adjuncts, such as water-ponds and the like, in the case here supposed, and there would be no greater difficulty and expense in fitting another engine of the same size and dimensions into the buildings than in the erection of the original engine.
(5.) Many of the other subjects referred to are distinctly in themselves moveable, whilst others are more or less fixed to the premises, the nature of which fixtures has been specially noticed, in referring to the different articles contained in the inventory.
(6.) The articles condescended on, and already adverted to, which are moveable in themselves, are all of them more or less essential to the going of the different works. If taken away their places could readily be supplied by other articles of the same nature and description. It is usual to have spare articles of most of the classes described about well-regulated
Page: 294↓
(7.) The general practice at coal and iron works similar to those of the deceased is, for the tenant, in the event of the termination of his lease, to remove the whole of such engines and machinery, if not previously belonging to the landlord, or specially acquired to him by the terms of the lease. And in the event of the exhaustion of the mineral field or any permanent bar arising to the profitable working of the minerals, the whole of the engines and machinery are removed by the tenant or worker of the field, or by the proprietor, if his property, and the general premises dismantled as far as it may be profitable to do so.
(8.) In describing the different articles falling under the preceding heads of special report, the reporter has so far specified what articles are removable without being taken asunder, and how far the others require to be taken asunder before removal. In reference to the steam-engines, the reporter may further state under this general head—That it is usual, in removal, to separate the various parts just so far as circumstances may require; for instance, in the case of a steam-engine, the cylinder may either be removed in connection with its basement or bottom piece, or they may be separated by undoing the joint, which, although it may strictly be said in most cases to have formed a chemical union when the lute is of iron borings, is still separable by skill and care, without material injury to the parts. In a similar manner, the various classes of pipes connected with the engines, pumps, &c., are frequently jointed together with a lute of iron borings, or what is technically called “ rust joint.” Still, such joinings are usually separated when the pipes are to be removed; and when the operation is performed with skill and care, there is no material injury to the parts, and, except by accident, no destruction of the pipes.”
Page: 295↓
The report was wound up by this general observation:
“In their general character, the whole of the subjects may be classed as the stock in trade of the late William Dixon, as a coal and iron-master. But an objection having been taken by one of the parties, at a meeting held after the draft of this report had been communicated to them, to the insertion of any remark bearing on the question of stock in trade, the reporter feels called upon to state, that he makes the above observation, because he conceives it necessary to exhaust the terms of the remit made to him, and at the same time to record the objection taken to the competency of introducing it.”
The Lord Ordinary ordered cases by the parties and upon advising these papers made avizandum to the court. The Court directed the papers to be laid before the other Judges for their opinion. Lord Cockburn, one of the consulted Judges, prepared an opinion in these terms:
“The property of the deceased was left by him in different situations, and this presents different cases for our consideration. But there is one of these which very nearly supersedes all the rest.
This is the case in which the machinery was erected by him upon land belonging absolutely to himself, and in his own personal occupancy.
The material facts as to all the premises in this situation are these:—The deceased himself—a fee-simple proprietor—erected the engines, the principal parts of which were fixed, though not absolutely immoveably, to the land; and the soil was not given as a mere station for machinery, with which it was not connected otherwise. The engines were set up and employed solely for the use, and the necessary use, of the landed property, or feudal estate upon which they were placed. There was no engine erected, except for the production and manufacture of the minerals, which formed the most valuable
Page: 296↓
Now, in reference to such a case, I am of opinion that these machines, and these parts of machines, are heritable, which are attached, either directly, or indirectly by being joined to what is attached to the ground for the uses of the minerals; though they may only be fixed in such a manner as to be capable of being removed, either in their entire state or after being taken to pieces, without material injury; and under this principle I include those loose articles, which, though not physically attached to the fixed engines, are yet necessary for their working, provided they be so constructed and fitted as to form parts of this particular machinery, and not to be equally capable of being applied, in their existing state, to any other engines of the kind.
In considering this subject, I entirely disregard the view said to have been formed upon it by the deceased himself. His opinion of the law is clearly immaterial; for no man can make his property real or personal by merely thinking it so. And I do not conceive this to be a question which depends even upon his intention; and if it did, the fact of his intention, which is liable to be deduced from innumerable circumstances, is not put to us as a matter of evidence. If I were obliged to give any opinion upon this merely from what is now before the Court, I should say, that as the entries in his books include subjects clearly heritable, (houses for instance,) as part of his stock in trade, this shows either that he knew nothing of the legal qualities of real, as distinguished from those of personal, property; or that he had no idea that
Page: 297↓
The general legal rule is so rudimental,—being merely that land and its immediate fixed adjuncts, is heritable,—that it seems idle to seek for formal authority in support of it. Nevertheless it is laid down, in a few simple maxims, with great clearness and rare unanimity, by all our writers. Indeed it is not so much on the general principle that even the parties differ, as on some supposed modern modifications of it. I do not see that even the executors impugn the general proposition, that what is physically annexed to the soil for the soil's use, is heritable. They cannot.
Solo inedificatum, solo cedit, is the legal maxim; and it nearly solves the whole case. But Heinneccius brings it more within the facts of this question, when he says that the civil law declares those things to be heritable, “ quæ vel salvæ moveri nequeunt, vel, usus perpetui causa, junguntur immobilibus, aut horum usui destinantur.” Lord Stair's description of heritables is, that they are those things “which, though they may possibly be moved, yet it is not their use to be so.” And he adds, that “positive law for common benefit constituteth property by the necessary conjunction in constructure.” And Erskine's statement is, that “things by their own nature moveable, may become immoveable by their becoming fixed or united to an immoveable subject, for its perpetual use.” These principles are adopted so unanimously, and so nearly in the same words, by all our authorities that it is needless to quote more of them. There is no adverse doctrine in our law; and Dirleton indicates his concurrence by asking, “whether the heir, who has right to a going coal, will have right to buckets, chains, and other instruments as being accessione and destinatione, addicted to the coal?” Which Sir James Stewart answers by saying, “the heir has
Page: 298↓
We are not so rich in cases upon this subject as our southern neighbours are. This is not so much owing, however, to our paucity of manufactories; for we have long had quite enough of these to bring out such a question as this; but apparently because the legal rule has either been more clear, or more steadily adhered to. Indeed there are two or three decisions which, though they have not the apparent importance that attaches to questions involving great establishments, are equally conclusive in law.
There are three cases founded on by the heir, to which I do not think that much, if any, weight can be attached. These are Arkwright (3d December, 1819), Niven (6th March, 1823), and Cox (1st June, 1833.) Arkwright's case was explained by the Court, in the subsequent one of Niven, to have no application to the principles now at issue. Niven's is equivocal; partly because it related to what was covered by an heritable security, which is generally understood to be taken on reliance upon the actual state of the premises, and partly because the Court went chiefly on the degree of injury that would be done to the machinery by moving it; and it is not easy to appreciate the different degrees of such injury in cases nearly approaching. In the case of Cox, the purchaser of the real property prevailed against the seller's creditors in a competition for the machinery; but then he had bought not merely the land but the manufactory and its appurtenances. None of these cases, moreover, occurred purely between heir and executor.
But in substance the case of Johnston (25th February, 1783) did; and it was there found that certain materials, such as doors and windows, were heritable; not because they had been already incorporated with a house that was building, but
Page: 299↓
The case of Gordon, (2nd December, 1806,) is another example. The plants in a sale nursery were there found to be personal property, because they were intended to be removed for the market. But Baron Hume states it as having been laid down by the Court, that the very same plants would have been heritable if they had only been meant to be removed for the service of an estate, of which the nursery formed a part. This discloses the operation of the principle, that things otherwise personal become real by being attached to land for its own use.
So far was this carried, that, in the case of Bain (13th November, 1821) it was found that the bell of a manufactory was heritable.
There is no contradictory Scotch case that I am aware of. Indeed there are three elements, the combination of which is conclusive on every such question. These are, fixture, destination, and convenience for the use of the land. There may be articles to which one, or possibly two, of these may apply, without their losing their character of personalty. In the case of a telescope, mere fixture to a building that contained it, was found not sufficient to make it heritable, because it was plain that the building was a mere accessory of the instrument. But I know of nothing of which it can be said, first, that it is fixed, directly or indirectly, to land; secondly, that it is destined; and lastly, that it is necessary, or even highly convenient, for the proper use of that land, of which it must not be said that that thing is real. The whole three are united here.
Page: 300↓
There can be no simpler or more conclusive example than the ordinary case of a common agricultural mill. How such an engine is to be disposed of in questions between creditors,—or between landlord and tenant,—or in construing a will, —or when it was erected and used by a mere trading miller without any particular reference to the farm on which it happens to be placed,—is not the question now before us, where we are dealing between heir and executor, and merely adjusting the succession of a landowner, who had set up machinery for the use of his own estate. Nobody can doubt that in such a case the fixed parts at least of an agricultural mill will go to the heir. This was expressly decided in the case of Hyslop (18th January, 1811); and though the Lord Ordinary in that case had found that the unfixed machinery was moveable, the Court had no opportunity of giving its opinion upon this point; and I conceive it not now to admit of doubt, that an heir, upon his succession, is entitled to such a mill, and to all its appurtenances. Will it be said, that though he succeeds to the well of the house, he must take it without the pipe or handle, because these, being physically removable, must go to the executor? Or must the heir in a salmon fishery forego the poles that are fixed at the mouth of a river, for stake-nets, and the boxes, sluices, and other apparatus necessary for cruives or yairs, because these can be safely taken down by the same skill that put them up? It humbly appears to me, that the simple case of a common corn-mill, whether acting by steam, water, or wind, as to the heritable character of which I cannot entertain the slightest doubt, settles this case.
Accordingly, the executors almost admit that the general principle is against them; and their claim really rests on certain circumstances or considerations, by which they say that the correct legal rule has been relaxed.
First, It is said that Mr. Smith's report proves that the
Page: 301↓
If the case were to depend upon the degree of force, or of injury, implied in the removal, I would ratlier be inclined to think that, as explained by the reporter, it was sufficiently great to give the machinery in question more of a real than of a personal character. But I cannot think that much turns upon this. All that is wanted, is, to get them fixed to the land. Not fixed indissolubly, but in such a manner as to denote that they were meant to be connected with, and to serve the uses of, the property. For I agree with Professor Bell, that “it is not mere physical annexation which alone deserves to be considered in such questions. That sort of annexation which depends on the principle of accession is frequently as strong a bond of connection as the mortar or iron by which a fixture is attached.” There is probably no engine, however ponderous, which may not be so constructed as to be capable of being moved without material injury. It is more than probable that even a house, large enough to be unquestionably heritable, may be so framed. The mere possibility, or even facility, of removal, certainly does not decide the question. What are more removable than the doors and windows of a house? Still there is fixture enough to let the other principles of destination, and of convenience for the enjoyment of land, operate. It appears to me, that the conservatory in a proprietor's garden, though it could be taken away and put down elsewhere, with the most perfect ease, in a couple of days; or even a garden seat, sunk a foot in the earth;—a wooden bridge laid across a brook,—a wooden porch over the door, though only attached by a single nail,—or a verandah hanging from a hook outside of a window,—though all capable of being lifted up and taken away, without the slightest injury, almost by a single hand, all descend to the heir.
Page: 302↓
In the ordinary case, the rights and substances of which we see the stock of a person's trade composed, are not only personal in law, but actually moveable; and hence, as soon as we hear the phrase stock in trade, the idea of such articles occurs to us. But we must not be misled by the sound of these words, or by the habit of understanding them to denote a limited class of objects. There is nothing in law to prevent real property from forming part of a stock in trade. Nothing is more certain than that it often does so. The deceased plainly, and justly, held not only certain houses, but the whole coal and other minerals in his lands, to be part of his mercantile stock; and he probably considered heritable bonds, and many other unquestionably real subjects, in the same light. If the case could be made to depend upon the mere understanding or wish of the deceased, and the fact of his putting the ipsum corpus of his landed estate into trade, were to be used only as evidence of his intention, this would form a different ground of argument altogether. But it is one which it is needless for me to consider; because I hold it to be clear, that the legal character of property cannot be made to depend upon the mere opinion or wishes of the owner. If the deceased believed or desired, that, in arranging his succession, everything he had in trade should go to his executors, he ought to have known that this effect could not follow from his mere understanding. If it did, the same effect must follow in all other cases; and what would be the result, if it were announced, that all the heritable property that is now traded with in Scotland, is henceforth to be considered as personal? Few companies or families could stand it. Family estates, where their principal value happened to
Page: 303↓
It is most important, however, to remark, that the notion that all stock in trade is personal, is correct only with regard to the stock of trading companies, and to the rules according to which the interest of deceasing partners in such stock shall go to their successors. Where the company continues notwithstanding such decease, the interest of the representatives of the dead partner resolves into a personal claim upon the company for the value of his share or interest in the concern, and this of course belongs to his executors; although part of the company's stock may consist of coal, buildings, landed estate, or any other subject unquestionably heritable in its own nature. But the principle of this rule has no application whatever to the case of a single individual making use of his own coal, iron-stone, building, machinery, for the purposes of trade; and ought to have as little effect on his succession.
Third. A great deal is urged about the favour that is due to trade. This indeed is the main foundation of the executors' claim: and its essence resolves into this, that, in reference to commerce, the strict rule of law has become inconvenient and must be changed.
I agree with Lord Ellenborough, who is reported to have said, in the case of Elwes v. Maw, (when speaking of the alleged danger of a legal doctrine,) that the “danger or probable mischief is not properly a consideration for a Court of law, as whether the adoption of such a doctrine would be an innovation at all.” If a clear legal rule has become inexpedient, it is the business of the legislature to alter it; and a Court is not entitled to supersede Parliament by a succession of gradually encroaching judgments. But where is the necessity for this favour, in such a case as the present?
Page: 304↓
We have no such case here. Nobody is proposing to take anything from the deceased or from his succession. He is to get the full benefit of every sixpence of his outlay. The only question is, whether part of what he laid out his money upon, is to go to one of his children or to others? He might have settled this as he chose. But if a proprietor will not settle such a matter, is there any public policy that recommends the mitigation of a legal rule merely to accomplish that division among his family which he himself was not at the trouble to arrange? And, besides, can it be laid down, with sufficient generality to be the foundation of a judicial innovation, that de facto it would be favourable to trade that its machinery should go to executors rather than to heirs? Or can it be said that the rule is to be adhered to, or to be
Page: 305↓
Take a case. If a gentleman with an estate chooses to raise and manufacture his own minerals, on his own ground, by his own machinery, and trades in their disposal, it is supposed that, on public grounds, he requires to be encouraged to do all this; and that the encouragement should consist in machinery, provided it be physically removable, descending after his death to his executors. Now, let it be supposed that the same individual, instead of doing all this himself, merely erects the machinery, and then lets it and the minerals to a tenant, and that he himself never trades at all. There is no pretence of any favour to him in this last case, because he is in no respect a manufacturer or a merchant. If encouragement be sought for him, merely as the layer out of the money by which the machinery was produced, that is not the point under consideration. What the executors urge, and what the English cases they refer to seem to sanction, is a peculiar protection necessary for trade. Now I know no ground whatever, on which it can be maintained, that the rule as to real or personal can, in a question of succession, be different in these two cases. But according to the executors it must. Whenever a person is in trade, their argument treats him as a trader merely. Whereas, according to my notion of the law, when this person happens also to be a landowner, and trades by selling the produce of his own estate, he is to be considered exactly as an owner would be who trades in the cattle, the clay, the corn, or anything else that is upon the surface.
And is there no favour due to landowners who are not traders? The doctrine of the executors implies that, whenever a proprietor dies, his property is to be plucked bare by his personal heirs, who are entitled to remove every article that is removable without material injury. His agricultural machinery,
Page: 306↓
Fourth, A good deal is founded upon the alleged usage of the country as to removing such engines.
Now, in the first place, the fact of there being any such usage, as applicable to the case now before us, is not proved. The reporter says, “that the practice at coal and iron works, similar to those of the deceased, is to remove the mechanism of the engine and other machinery from one part of the premises to another, as occasion may require.” And he afterwards states, that the practice is “for the tenant, in the event of the termination of his lease, to remove the whole of such engines and machinery, if not previously belonging to the landlord.” And then he mentions, (which was almost needless,) “that, in the event of the exhaustion of the mineral field, or any permanent bar arising from the profitable working of
Page: 307↓
Indeed, except for the sake of showing the practicability of removing such things, I do not see the relevancy of usage in this discussion. It might be an evidence of probable intention, if the case turned upon intention. But though it could be shown that all merchants were in the practice of dealing with heritable bonds very much as if they were personal, this would not alter the legal character of these instruments in a question of succession.
I conceive, therefore, that all these considerations are irrelevant or immaterial, and that the ordinary legal rule must be given effect to, so long as the legislature permits it to last.
The executors have made their strongest appeal to the law of England. But were it not that they have so urged that law upon us, that we might seem not to have done justice to their case unless we considered it, I should not venture to
Page: 308↓
This remark is, that, with one exception, not one of them applies, except in some incidental observations by the Court, to the particular case now before us.
Thus, Elwes v. Maw was a case about the right of an agricultural tenant to remove buildings which he had erected upon the farm.
It is immaterial here how such a claim was disposed of, because it is inapplicable to the matter before us. But I am struck with the observation of Lord Ellenborough, who, in delivering judgment, classifies the cases; and after describing one of them as arising “between different descriptions of representatives of the same owner of the inheritance, viz., between his heir and executor,” states, that “in the first case, i.e., between heir and executor, the rule obtains with the utmost rigour in favour of the whole inheritance, and against the right to disannex therefrom, and to consider as personal chattle, anything which has been affixed thereto.”
In Lawton v. Lawton the point was, whether a fire-engine set up for the benefit of a colliery by a tenant for life should go to his executors, or to a remainder-man. This is not the
Page: 309↓
Lord Dudley v. Lord Ward was the very same case as the last, except that the erections were made by a tenant in tail, instead of a tenant for life. But Lord Hardwick states this was immaterial,—“In the reason of the thing there is no material difference; the determinations have been from consideration of the benefit of trade.” And the extent of the benefit given is thus described,—“Suppose a man of indifferent health, he would not erect such an engine at a vast expense unless it would go to his family.” There is no preference of one part of the family to another.
The point in Trappes v. Fielding's assignees is thus stated by Lord Lyndhurst,—“The question was, whether the machinery, the subject of the present action, passed to the mortgagee by a mortgage deed granted by the bankrupts before their bankruptcy, or whether it became the property of the assignees under the commission?” This being the question, it is needless to say more about it in reference to the present case. It was full of specialties; it in particular was not between heir and executor; and it depended very much upon the terms and meaning of a deed. The result was, that “under all these circumstances, it appears to us that there is sufficient to satisfy the terms of the mortgage deed, without including the machinery in question, and that it neither passes, nor was intended to pass by that deed.”
Page: 310↓
In Loyd v. Wallmslay the point seems to have been, whether a company which had erected machinery as tenants had a right to remove it. This being the nature of the case, the result for our present purpose is immaterial. But it is remarkable that the same feeling in favour of the heir, and the same reservation of any case between him and an executor, that occurs in all the other cases, is disclosed by the Chief-Justice in Bankruptcy,—“Where any fixture is annexed by the tenant, it does not necessarily become a part of the free-hold, but its character as realty or personalty depends on the nature of the fixture, and the purpose for which it was annexed.” But “where the annexation is made by the owner
Page: 311↓
In Lawton v. Salmon the question did arise between executor and heir, and it is the only one of these cases in which it did so arise. It was an action brought by an executor against an heir, or which was the same thing, against the tenant of an heir, to recover the value of certain salt-pans used in a salt-work. The facts were, “that these pans were made of hammered iron, and rivetted together; that they were brought in pieces, and might again be removed in pieces; that they were not joined to the walls, but were fixed with mortar to a brick floor.” It was decided that these vessels belonged to the heir. Lord Mansfield, in delivering judgment, mentions the favour that had sometimes been shown to tenants for life or in tail as against remainder men, and then says, “but I cannot find that between heir and executor there has been any relaxation of the sort, except in the case of the cider-mill, which is not printed at large. The present case is very strong. A salt spring is a valuable inheritance; but no profit arises from it unless there is a salt-work, which consists of a building for the purpose of containing the pans, &c., which are fixed to the ground. The inheritance cannot be enjoyed without them. They are accessories necessary for the enjoyment and use of the principal.” It is not easy to add weight to the authority of Lord Mansfield; but these words are quoted with approbation by Lord Lyndhurst in deciding the case of Trappes. So that, notwithstanding modern relaxations, the rule, as between heir and executor, has descended unimpaired from Lord Mansfield's time to the present day.
I therefore see nothing in these English authorities that ought to make us hesitate in applying what I conceive to be
Page: 312↓
It is scarcely necessary to notice the other positions of the deceased's property.
One of them was, that he was the owner of a piece of ground, on which he first erected a foundry, and then let the ground and foundry together to a tenant upon a lease current at his death. In principle this is the same with the last case. He attached the foundry to the soil for the necessary use of the land; and the machinery is heritable, whether he himself traded with it, or merely took a rent and let his tenant trade.
A third situation was, where he himself was only the tenant, and had the use of machinery belonging to his landlord. Since the machinery was not his, I do not see how the case comes into the present question as to his succession at all.
Page: 313↓
The last case is, where the deceased, though only tenant, had erected the machinery. We are scarcely in a situation to determine the result of this, because we do not know whether his agreement with his landlord entitled him to remove the machinery at the end of the lease or not. If it did, then, as the purpose for which it was erected will be served, and its connection with the land will be ended with the lease, so far as I can at present see, that machinery will ultimately belong to his executors.”
This opinion was concurred in generally by all the consulted Judges except as to the law indicated in the last paragraph. In regard to this two of the Judges, the Lord President Boyle and Lord Murray, expressed doubts, while Lords Cuninghame, Gillies, and Fullerton expressly dissented, holding that in the case put the machinery would belong to the heir and not to the executor of the tenant.
When the cause came to be advised upon the opinions of the consulted Judges, Lords Meadowbank and Medwyn concurred in these opinions, while Lord Moncrieff and the Lord Justice Clerk dissented.
Lord Moncrieff delivered his opinion in these terms:—
“I had occasion to give a great deal of attention to this case, in the preparation of it, and had the advantage of hearing it very fully argued viva voce before me. I considered it as a case of very great importance, and one in which a great deal of discrimination was necessary. I still regard it in the same light; although I must confess, that, if the leading views adopted by the consulted Judges, by which the cause must be decided, and by which, as I understand the opinions, all, or very nearly all, the subjects embraced in the condescendence, are to be accounted heritable, (a result which certainly did not enter into my comtemplation,) are sanctioned
Page: 314↓
Though I shall feel it to be my duty to deliver very fully my own opinion on the merits of this case, which I cannot but regard as of very vital importance both to the law and to
Page: 315↓
Again, I do not know whether or to what extent the very numerous articles condescended on, which, according to the report, are simply or “distinctly” moveable—not being at all attached to any part of an heritable subject—are to be held heritable in the present question. Sometimes it is so said in
Page: 316↓
There is, farther, an important difference of opinion on the last point stated in Lord Cockburn's opinion. It is, I believe, necessary to decide it; and I consider it as so important, that, if Lord Cuninghame's opinion were to be adopted, while it would in a great measure nullify the distinction by which the force of the English cases is sought to be avoided, it would, in my opinion, in effect, alter our own undoubted law, in regard to the succession of the heir and next of kin of every tenant of Scotland. I shall think it necessary to request very particular attention to that point. But having suggested these difficulties, in regard to the practical disposal of the cause, I now turn to the consideration of the merits of it.
Throughout the case for the respondent, Mr. Dixon, and “in all the opinions, it is taken for granted, that the question arises simply between the heir and the executors of the late Mr. Dixon; an assumption which is found exceedingly useful to the argument with reference to some of the judgments in the English Courts. But the assumption is not correct; and the indefinite use of the terms ‘ executors’ and ‘ executry,’ leads to an important error in the foundations of the discussion. The claim of Mrs. Fisher is not a claim as an executor of her father, nor a claim on his executry estate, in the proper sense. If it were, it would be excluded by his will, without inquiry as to the nature of the subjects of property. Her claim is for her legitim as a creditor against her father and his executors,—a right which he had no power to disappoint by any conveyance of personal estate either to his heir or to his executors; and the fund of legitim is not part of the executry, but perfectly distinct from it.
This is not a mere distinction of words. There is deep
Page: 317↓
I am not here saying, that, if it were a question between heir and executor, the articles, or any particular class of them, must, in all such cases, be held to be heritable. I cannot think so; and I believe I have the distinct authority of Lord Lyndhurst for at least entertaining the greatest doubt of it. But, attending to the distinctions under which the question has been discussed, both here and in England, and to the way in which it is treated in the present case, I think it of very great importance, that the true character of that case should be kept steadily in view.
Proceeding on the idea of its being a question between heir and executor, strong representations are made of possible inconvenient results, if, on the death of a proprietor, his executors could always carry off the machinery and utensils necessary for carrying on works established on the lands . One answer to this is, that it assumes, as a principle of law, that whatever is essential to the cultivation and profitable enjoyment of an heritable estate, must necessarily be heritable in succession,—a principle nowhere recognized that I am aware of. What is the whole stocking of a common farm? The carts, wagons, ploughs, harrows, fanners, horses, cows, spades, pick-axes, rollers, hammers, saws, the utensils of a great dairy, and innumerable other articles, are all indispensable to the working of the land, whether by a tenant or by the proprietor himself, and often constitute a very large portion of his estate at his death. But is not such a stock, are not such articles personal or moveable in succession, which, if not otherwise regulated by deed or agreement, must fall to his executors or next of kin, and may be all carried off or sold? And was it ever before supposed, that because of the inconvenience which this might occasion to the heir, in the necessity of replacing them by other articles of the same kind, they must be held to be heritable, though truly moveable in their own nature? I believe that such a proposition never was maintained; though the undoubted law on the subject seems to have been lost sight of in some of the opinions on the case of a tenant dying during a lease. It is evident that the question must be brought to a very different test from this.
But, before looking for such a test, can no strong case be stated the other way,—no case both of inconvenience and plain injustice resulting from the opposite principle? It will come nearer the point, and afford a surer test of the fairness, as well as the soundness of that principle, to suppose that a man possessed of extensive real property held burgage, and of large personal funds, chooses to invest the whole of those personal funds in the purchase of machinery and other articles in their nature moveable, placed in some part of the heritable subjects, for the purpose of carrying on a great trade there, as
Page: 319↓
If the argument of the respondent for the unbending rule maintained be sound, such a result would be inevitable; and, according to that argument, it would take place equally in regard to creditors, like the widow and children for their jus relictæ and legitim, as in the case of gratuitous next of kin. It is the necessary effect of the moveable subjects having been made heritable in the way alleged. And it is said, in order to relieve the apparent evil of such results, that a man is bound to know the law; that his understanding of it is irrelevant to the question, and cannot alter it; and that if he has neglected to provide against it, there is no help for the consequence. This may be all true, once it is settled what the law in the special case is. But in trying the question, what the law is, it does not follow that the natural belief, or still more, the actual
Page: 320↓
Having it in view, then, that this is the case of a creditor claimant, and that such a result as I have represented must be comprehended in the question, I come now to consider the case on the facts ascertained, and the law as I understand it.
All the articles specified in the condescendence and report, on which any question arises, are in their original nature and character moveable subjects, manufactured, prepared, and purchased as such, at a distance from the heritable property on which they were found placed at Mr. Dixon's death. The question is, whether all or any of them, or what part of them, had been converted from their condition of moveable or personal estate into that of real or heritable. The respondent must show this.
The plea for rendering all, or nearly all, of these heritable in law, is derived from two principles, either taken separately or in combination, viz.,—1. Fixture, or physical attachment, either to land itself, or to a house or building actually and legally forming a part of such land as an heritable estate; and, 2. Destination, as I understand it, by the act of the proprietor, in placing it in a particular situation in connection with his operations in the locality of his heritable estate.
I cannot help thinking that there is a great looseness in the manner in which those two principles are here almost indiscriminately applied. And, with regard to the last, in particular, while it is evidently dependent, in regard to a great
Page: 321↓
In the argument, and in the opinions, the principle of fixture is treated as the leading and conclusive point. It necessarily must be so, in order to make out a case of heritable estate. For, if there were no annexation at all of anything to the freehold, I should think that neither on principle nor on authority would it be possible to allege that the property was heritable. And yet, throughout the argument, there is an anxious endeavour to mix the idea of destination with that of fixture,—which is aided by the assumption of a fact as indiscriminately applicable, which does not at all apply to nearly one-half of the property.
I. But, before I consider at all the effect of such fixture as that which is reported in the present case, I wish to direct attention to the very numerous and valuable articles here condescended on, as to which it is ascertained by the report or special case that they, in themselves, are not all attached either to the land, or to any house, or any machinery that is so attached. As to them, there is no case of fixture at all; and they are expressly reported to be simply moveable subjects.
Page: 322↓
If it be said that some of them may be in law moveable, and others heritable, the consulted Judges have not instructed us how we are to make the distinction. If I follow my own views, I cannot distinguish one class from another, except perhaps in one instance, and that depending on a condition yet to be considered. And anything like a principle indicated in the opinions is so exceedingly loose and indefinite, that I should be in the greatest difficulty how to apply it.
But on what ground is it that things moveable in themselves, and which have never changed their proper moveable state, are to be held heritable in a question like the present? I understand the ground taken to be destination, because the articles are necessary to the going of the works or the trade. It is to be observed, however, that, though many of them are stated to be essential to the working of the fixed machinery, a large proportion are not of this description, but only necessary to the trade; e. g. article 8 of condescendence.
But when was it decided that mere implements of trade are to be held heritable, simply because they are destined to the purposes of a trade to be carried on in, or on, a particular heritable subject? This cannot be held, even if the trade is to arise from produce to be extracted from the soil. The known case of farm stocking is a palpable example of the reverse. The carts and ploughs, &c., are as essential to the
Page: 323↓
It seems to me to be a misunderstanding of the principle, by which things in themselves moveable may be rendered heritable destinatione, to apply it to such a case. Moveable rights or subjects may be made heritable destinatione, when they are provided to the heir by marriage-contract, or other deed within the granter's power. The same principle applies also to bonds with a clause of infeftment, and bonds secluding executors, though other considerations may also affect these cases. And it seems also to have entered into the judgments in some of the cases of securities constituted by deeds over machinery. The case, however, which is pressed as affording a direct analogy, is that which occurred in Johnston, February 25, 1783,—of a house in progress of building, and certain window sashes or window frames, prepared and on the ground, but not yet put up. The court refused to find that these articles were parts of the building, and thereby heritable. But they found that, being destined for the house, they fell to the heir. That decision was pronounced with difficulty; and it may well be doubted whether it would have been pronounced in a case of legitim. But it appears to me, that there is no principle involved in it which can have the least application to the moveable articles here in question. The distinction is to my mind plain and palpable. The window frames were prepared and destined for a specific purpose of being incorporated into a known heritable subject, a house in progress of construction for permanency. If they had reached the end of their destination, there would have been no question.
Page: 324↓
But, it may be asked, how is the case of the moveable articles in the Wilsontown inventory to be solved on this principle? There was no ironstone mine there. The claimant averred, that when Mr. Dixon purchased the premises and machinery there, it was his purpose to dismantle the works and remove all the articles. This purpose was denied. But it is expressly admitted that ‘ he had never set the works agoing.’ So, at his death, no machinery had ever been worked there in his possession. And how then had he, by an act of his own, destined the moveable implements there lying to form part of the heritable subjects? Destination to be removed and used in another place, if not sold, would just prove them to be in every sense moveable; and non constat that he ever meant them to be used at all in that locality.
Or the case may be put of a mine exhausted,—a colliery where the coal is worked out, and the machinery and implements remaining on the spot. It is a case for testing the principle on the whole question. But how would the actual unattached moveables then stand? How would they be heritable destinatione?
It is the more remarkable, that the claim to this part of the property as personal estate should be resisted, because, in the very latest case in this Court, Cox v. Stead, &c., June 1,
Page: 325↓
Finally, If we are to go on destination alone as to these articles, I do not see how the Court can refuse to look at the actual meaning and understanding of the party, as it is proved by the deeds of conveyance, and the distinct entries in his own books. Most clear it is that he treated all the articles of property in question expressly as constituting part of his moveable estate. But, as this goes deep into the more important question still to be considered, concerning the fixed machinery, I shall not at present go into the particular facts. The destination, however, is clearly to the trade. Query.—What is the situation of the engines and carriages on a railway? Are they heritable destinatione? They are very emphatically moveable; but yet they are for no use but as attached to the fixed railway. Part of the very things here in question are the same.
But I am of opinion that, with the exception of one class of articles which I have specified, all the articles in a simply moveable state, as reported, must be held to be personal property in the present question.
2. The more important and interesting question is that which relates to the steam-engines and larger machinery, or, in general, that part of the articles condescended on which are in one way or another affixed to the ground, or to stone buildings erected on the ground.
As far as I may be a competent judge, it does not appear to me that this question has ever been fairly brought to trial, either in England or Scotland, till the present moment. And, although I am very sensible of the difficulties attending it, I cannot, with all deference, help thinking, that it is far too narrow a view of the subject, to hold it as at once resolved
Page: 326↓
I may here, however, advert to the case of the threshing mill. I should think it hard, certainly, to decide so important a point as the present by what was done in a small matter like that. But such as it is, it is direct and decidedly against the respondent. In Hyslop v. Hyslop, Jan. 18, 1811, Lord Armadale (a very good lawyer) held and decided that, though the stone part of such a structure was heritable, the machinery was moveable; stating expressly in his interlocutor that, in so finding, he followed a previous judgment of the Court. The party against whom that and other points were found, reclaimed against the interlocutor: and though it is true that the report
Page: 327↓
But I beg leave more generally to observe, that I consider the progress and tendency of the law to have been altogether in the opposite direction;—that is, to relax, and not to tighten, the old principle of fixture. It is impossible to read the passage in Mr. Bell's work (Com. i., pp. 753-4,) without seeing that he was very strongly under that impression, even while struggling with the cases of Billinge, &c. See particularly a strong passage in p. 754. After some general reasoning on the effect of the employment of stock in trade and manufactures, and reference to English cases, he adds:—
“These are distinctions which equity and public expediency, as well as mercantile understanding ought perhaps to recommend to adoption, even in the case of succession ab intestato; and they do not seem to be inconsistent with the common law of Scotland, in regulating the
Page: 328↓
interests of the parties to a contract of temporary possession”
It appears to me, therefore, that the present question ought to be considered on broad general principles, with reference to the distinctive nature of the subjects to which it relates, the particular mode of affixture, the purpose and design for which they were placed in the situation where they were found at Mr. Dixon's death, and his own understanding concerning the character thereby impressed on them, or retained, according to their original state, as a part of his general property.
Before a correct judgment can be formed on this part of the subject, the precise facts must be attended to.
1. The articles of machinery in question are all, in their own original nature, moveable subjects, made and completed as works of mechanism, and constantly bought and sold as moveables, without reference to any particular building or locality.
2. When such an engine is to be applied to use, sometimes it is placed on the ground, without being attached to any house or stone-building, though it is fixed in a certain way for stability; but more generally a building is erected for securing and protecting it. But it is clear on the report, that when this takes place, the building is made for the machinery, and adapted to the purpose of receiving and covering it,—not the machinery for the building. The machine is the principal, the building but an adjunct,— “the skeleton or framework of the general structure,”—and the value of the machine is more than five times that of the building.
3. The mode of placing and securing such a machine for use is arbitrary and various.
4. But, after an engine is so fixed or attached, it is done in such a manner, that in general it can be easily removed, without any great injury to itself or to the building. There
Page: 329↓
5. It is a matter of constant practice to remove them.
It might seem a very elementary remark, that in the question whether a particular article or subject is in law moveable, it cannot be an immaterial consideration that it is in fact moveable, easily removable, practically removed, sold, &c., every day; that it may be made with ease to follow the person, whenever the locality of his trade is shifted. Yet the argument for making such subjects heritable is derived from a maxim which supposed a very different state of the fact. Quod solo inædificatur solo cedit supposes the erection of a house, or other permanent structure, which cannot be removed; and it means that the property of the soil gives a right to the house. Cujus est solum ejus est usque ad cœlum. But the question still remains what inædificatio imports; and it does not follow that it includes a mere implement of trade temporarily fixed on the premises, which is easily removable, and would be equally valuable when moved to another site.
If the mere fact of an affixtion thus characterised must still have the effect of rendering such articles legally heritable subjects, it should do so, in correct reasoning, in all cases alike. But if it is and must be granted that it does not, and that, in a variety of cases, the very same subjects are to be accounted in law moveable or personal estate, it must be open to the Court to consider whether, in the circumstances of this case, it has such an effect; whether, the engines and
Page: 330↓
It appears to me that the second ground of judgment urged, and largely relied on in the opinions, viz., that these subjects of property are made heritable destinatione, not only is fallacious in the inference deduced under it, but, as a principle, ought to lead to the opposite conclusion.
Here it is necessary to remember what the true state of the question is. It is not a question between heir and executor. Where it is so, and the party has any special intention as to the destination of such subjects, he can always give effect to such his intention by very simple deeds; and this is an answer to all the apprehension of inconvenient consequences from the principle of holding them to be still moveable in that case.
But a man cannot disappoint the legitim by any direct deed of destination. He cannot make that to go to the heir which is in itself moveable, to the prejudice of the legitim, even by a direct declaration of a purpose to that effect. And, therefore, the principle of destination, to have any effect in this question, must be applied in a very different manner from a mere presumption of a wish to prefer his heir to his younger children, as the creditors for their legitim. There can be no such presumption in law. The presumption is the reverse—that, as administrator of the goods in communion, he has no intention, by indirect acts, to alter the state of the rights and interests of his children at his death, but rather intends to preserve them entire.
It is very true that the father may relieve himself from the claims of his younger children, in regard to his property, in several ways. He may transact with them, when of age, for a discharge of their legitim. He may settle all by deed, in such a manner as to satisfy them all, without inquiry
Page: 331↓
But when a man lays out his money in the purchase of goods which are in their own nature moveable, and at his death the question arises, whether, in the state and situation in which they are then found, they are parts of his heritable estate, or of his personal estate, in that question there can be no presumption of favour to the heir, or that by acts having no reference to succession, he has conferred a benefit on him, and impaired the rights of the younger children. It may be found so in the result of the question. But in that question the presumption is the reverse—that the rights of succession, more especially onerous rights, are not altered by equivocal acts in the ordinary use of subjects of property.
How then does the principle of destination really apply in the present case? To what were the various articles condescended
Page: 332↓
To me it appears that the proposition set against this, as affirming a matter of fact, more than an inference of law, is sound and true—that they were destined solely to the purpose of the trade to which they were subservient. Is not this the truth to be deduced from all the facts in the record and the report? Though there were not the most direct evidence that it is so, I should think that the very nature of the case proved it. Here is a man engaged extensively in a particular species of trade and manufacture, who, having realised large personal funds by means of it, employs those funds in prosecuting the same trade still more extensively. In doing so, he may have acquired certain property, so decidedly of an heritable nature, that, remaining in his own exclusive possession, it must be accounted heritable in all questions. Yet, even in this point, there is this peculiarity, that even in such acquisitions, there was a single view to the promotion of his trade, and no view to the creation of a great heritable estate in his heir. The various subjects were detached parcels of land, evidently, and indeed expressly, purchased for the sole purpose of being made subservient to his views as a trader in coal or iron. It is not even the common case of a man who, having a landed estate, and discovering a mine in it, makes arrangements for working it to profit. Here it is all a matter of trade—sometimes with the minerals to be wrought upon found within the ground purchased, and sometimes the site selected for a work merely for the sake of its locality, the materials being drawn from other places.
When, in such circumstances, the trading speculator purchases moveable articles necessary for his trade—articles of
Page: 333↓
But in the present case it is quite certain that Mr. Dixon himself had no idea that he had, by destination, or by anything done, rendered those moveable articles part of his heritable subjects. It is said that his opinion in point of law could not render them moveable if they were truly heritable. That is very true, once it were found that they were heritable; and if the whole point in controversy might be at once assumed, the observation would be very just. But, in the question whether they were heritable or not, and when it is maintained that Mr. Dixon made them heritable, and that destinatione, surely his own view of the effect of what he did cannot but be of importance.
Now, 1st, All the articles in the condescendence constituted part of Mr. Dixon's stock in trade, and were so reckoned by himself in his books.
Page: 334↓
In the Lord Ordinary's note, he stated that the fact might perhaps be taken as admitted. He added, that if this should be objected to, it might be put in the remit, or ascertained in some other way. When this was so stated, if the respondent did not hold it to be admitted, he was bound to say so, that the Lord Ordinary might judge whether to express it in the remit or not. As he did not do so, I held it as admitted—and for that reason only did not make it a special point of inquiry. Probably there are general clauses in the remit, sufficient to have warranted what Mr. Smith has reported on the subject.
But the respondent, after letting the remit go, without interposing one word of objection against the Lord Ordinary's supposition, that the fact might be taken as admitted, objected to Mr. Smith stating it in his report. And he then let it pass, without even yet making any denial of it, or requiring any other investigation. In such circumstances, I hold it as an admitted fact in the case.
But, whether it be admitted or not, I think that it clearly appears upon the facts and documents reported, independent of Mr. Smith's report of the inference. The accounts entered in Mr. Dixon's books distinctly shew this; and though it is very true, that, in stating the whole stock of which he was possessed, he also puts down his proper heritable property connected with the various works, these subjects are so pointedly separated and distinguished from the machinery and other articles which he esteemed moveable, as only to strengthen the inference that all of these latter were taken by him as constituting his personal stock in trade. In one instance, indeed, that of the Calder Coal and Iron-Works, in which the land occupied was merely occupied as the site of those works, both the coal and iron being brought from
Page: 335↓
But, 2nd, There is direct proof that Mr. Dixon considered and treated all the machinery in question as still moveable effects in his possession. I shall not go into the detail of particulars, which might be necessary, if my view of the principles of judgment were not excluded by the opinions of the consulted Judges. But just look at the state of the matter in the case of the great work of the Govan Colliery. First of all, the heritable, clearly defined, is conveyed by one deed of disposition, which bears no allusion to any part of the machinery; and then, separately, an assignation is taken of the personal property, consisting expressly of the steam-engines, machinery, utensils, &c. Then there is an inventory and valuation of the whole entered in the books,—the first part of which is,—“Inventory and valuation of the moveable property belonging to the Govan Colliery, viz., steam-engines, machinery, and utensils,” &c., &c., in which not one article of a proper heritable nature is included. And this is followed by a separate inventory and valuation of the “heritable property, viz., lease of colliery, farm,” &c. When, again, Mr. Dixon acquired the sole property of the Govan Colliery, and all belonging to it, separate conveyances were again employed, the engines, &c., being all
Page: 336↓
I take this as an example of what, in one form or another, though not always so simply, appears in regard to all the similar articles of property condescended on. And I must regard it as of very great importance in the question. For, 1. it confirms in the strongest manner Mr. Smith's report as to the practice and understanding of the trade as to the moveable nature of those subjects. In any similar investigation, Mr. Dixon's testimony would, from his great knowledge and experience, have been the very best possible after Mr. Smith's own. But, independent of any testimony or opinion, the things done bear real evidence of the decided understanding. For, if the steam-engines were, either by affixtion or destination, or both together, effectually rendered incorporate parts of the land or building, so as to pass with them, whether by a disposition silent regarding them, or by succession ab intestato, of what use would it be to include them in a separate personal deed of assignation as moveable effects? It never could have been thought of. Even if it had been intended to make them pass with the heritable subjects, it would have been enough to specify them in the one deed of disposition, as held in the case of Arkwright. But the pointed nature of the proceedings in this case demonstrates the reality of the impression, that they constituted property of a very
Page: 337↓
But, 2, Is Mr. Dixon's own belief, and understanding and dealing, of no moment, when it is said that these moveable articles of trade were made heritable in his estate destinatione? Mr. Dixon lived and died in the full belief that they were parts of his moveable estate; and no man can doubt that, if he had died intestate, as might have happened, he would have died in the belief that they would be so taken at his death. That he made a special settlement does not alter the state of the property, or his belief regarding it,—though I fear it has too much practical influence in the question.
But the manner in which the party has himself dealt with the subjects has always been held to be a legitimate element in the question. It was so in Arkwright and in Stead; and it was very pointedly so regarded by Lord Lyndhurst in the case of Trappes.
It must always be remembered, however, that it is not on this fact alone that any opinion for holding the subjects to be moveable is rested. It must be combined with all the other facts,—particularly that they are easily removed, and constantly in use to be so,—that they are of equal value when removed,—that they are placed there for trade only,—and that they may be so on a very temporary possession of the ground, and where that ground is merely the site of the trade carried on.
It is asked, how it is for the benefit of trade that such subjects should be held to be moveable in succession? I answer, that it always must be for the benefit of trade that the course of succession to a man's property at his death should not be altered by what he does for the purposes of trade only, unless he has decidedly changed the nature of it to all effects whatsoever, to the evident perception of himself and all mankind. It will not do to assume that the things
Page: 338↓
I shall not enlarge further. It appears to me, in general, that all the articles in the condescendence, as reported, with the exception of the blast-furnaces, and a very few other articles, which it appears are practically not removable, ought to be held to be moveable in the present question.
I have adverted to the Scotch cases, none of which, I apprehend, can be held to have settled the point. But I must still take notice of the English authorities quoted; though I can only speak of them with great diffidence.
It appears that there was in England a strict rule concerning fixture, even more rigid than that in Scotland. But it is equally clear that it has been gradually relaxed. The grounds of relaxation are precisely those I have been considering,—the purpose of the annexation as being for trade,—the facility of removal,—the practice of removing,—the building being only for protection,—their being only partial annexation,—the subjects being treated as moveable in the accounts of stock.
I shall not attempt to go minutely through the cases, which appear to be well explained in the papers, and more
Page: 339↓
I do not pretend to form a judgment how far all the cases can be reconciled. Lord Lyndhurst seems to think they may. But the rules are stricter in the Common Law Courts than in the Equity Courts. The result is clear, that between landlord and tenant—between tenant for life and remainder man—between mortgagor and mortgagee—such machinery, and specially a fire or steam-engine, has been held personal estate. It is said by Lord Hardwicke not to be so frequently so held between heir and executor; and there is one, judgment of Lord Mansfield (in the Common Law Court), in the very special case of salt-pans, attached to a salt-spring, holding them to be real; of which, however, an explanation, thought to be satisfactory, is given by the English lawyers.
But I come at once to the case of Trappes, decided very solemnly by Lord Lyndhurst. It was a question between the assignees of a bankrupt and the holder of a mortgage. The mortgage deed conveyed expressly, with the “lands and buildings, the steam-engine, mill, gearing, heavy gear to millwright work, fixed machinery, and other matters and things erected and then standing.” The assignees did not claim the steam-engines and water-wheels, holding these to be given by the mortgage deed, just as in the cases of Arkwright and Stead, although there is this very important difference, that a debt secured by mortgage is believed to be
Page: 340↓
But why was it held not to pass, or not to have been intended to pass? “In taking the stock, it appears that the land and buildings were constantly placed under one head, and the machinery under another. It also appears that machinery of this description is, in that part of the country, constantly bought and sold without reference to the freehold.” The conclusion of Lord Lyndhurst is direct to the point. “We are of opinion, therefore, that, with respect to machinery of this description, erected by the bankrupts for the purposes of trade, it would have passed to the executor, and not to the heir, and that it was the partnership estate of the bankrupts”. This is the doctrine held upon a review of all the cases.
Now, 1. It is decisive as to all the small machinery in the present case, for all the same facts are here combined for rendering it personal estate.
2. As to the steam-engines, &c., there is here no deed under which they can be held to pass as heritable, or in connexion with heritage.
3. There is direct proof that they were intended to stand as personal estate, being so placed in all the accounts of stock.
4. The opinion is direct that such machinery, so treated and dealt with, must be accounted personal, even between heir and executor, adopting the dictum of Lord Hardwicke, with special reference to a fire-engine.
And, 5. The present case is a fortiori of any case of heir and executor.
I have only now to advert in a few words to two points.
1. In regard to the Glasgow Foundry. The ground being Mr. Dixon's property, he let it to a company, but for four-ninths, and under an obligation in the lease he erected machinery. Now the consulted Judges may be right in saying, that, so far as the machinery was his property, it is the same case with that of most of the other works. But here it is overlooked, that the assumption so largely gone upon before, that the machinery was erected solely for the purpose of realizing the produce of the ground, entirely fails. The whole materials wrought at the foundry were brought from the Calder Coal and Iron-works. The ground of the foundry was the mere site of a trade.
It is also overlooked that, besides the machinery erected by Mr. Dixon, there were tools, implements, &c., which belonged to the company. Certainly his shares of these were personal estate.— Kirkpatrick v. Syme.
2. The other point is that referred to in the last paragraph of Lord Cockburn's opinion, from which Lord Cuninghame and others have dissented.
It is a very important point. There can be no doubt that the machinery erected by Mr. Dixon, as a tenant, was his property, and that, according to all the authorities, he had a right to remove it as personal property. This is the very point conceded on all hands, that, in a question between landlord and tenant, such property erected by the tenant is personal estate and belongs to him.
Being personal estate, and on that ground alone vested in the tenant, it might seem a very elementary proposition, that it must be part of his moveable estate at his death. And so Lord Cockburn holds.
But even this will not be granted to the child asking legitim. And why not? Because the articles were placed on the ground for the purposes of the lease, and the heir cannot continue to trade under it without them.
This is really driving the doctrine into a very strange position. Fixture is out of the case, for that would make them
Page: 342↓
And see what strange results it might bring it to. The lease may be within half-a-year of expiring. What would the machinery be then? It would come to this, that being certainly moveable in his person, they would be personal estate in his succession if he died the day after the lease expired, and heritable if he died a day before the term.
In short, we are required to hold that this property, undoubtedly personal in the tenant, is yet, without any change on it, heritable estate in his succession. I apprehend that this proceeds on an entire mistake as to the meaning of the principle by which things may be made heritable destinatione. But, in short, I cannot assent to a proposition which appears to me to involve such inconsistent results, and to lead to the greatest confusion in the succession of all tenants in Scotland.”
The opinions of Lord Cockburn and Lord Moncrieff were
Page: 343↓
The Judges concurring, as well as those dissenting from the opinions of the consulted Judges, agreed in directing the papers to be again laid before these Judges, for the purpose of their stating what portions of the machinery they considered to be moveable in conformity with their opinions. This was done by the word “heritable” or “moveable,” as the case might be, being marked on the inventory and description in Mr. Smith's report by the consulted Judges, who made this addition to their opinions:
“As to the engines and other machinery for working the collieries of which the late Mr. Dixon was not the owner, but only the tenant, and which belonged to the landlord,—in respect it is admitted by Mr. Dixon, and not disputed by the claimants, that they never belonged in property to the defunct during his life, and so were not in bonis at his death; and further, in so far as regards such subjects under lease on which the late Mr. Dixon, being the tenant only, made erections, which he was entitled to remove at the end of the lease, which the respondent also admits must be included in the executry, we are of opinion that the Judges of the Second Division may now dispose of the two articles in the appendix to Mr. Smith's report, articles 6 and 7, having regard to our former opinion, without further opinion from us.”
Page: 344↓
“The Lords having resumed consideration of the revised cases for the parties, dated 4th November, 1839, with the closed record, Mr. Smith's report, and other proceedings therein referred to, and the opinions of the consulted Judges, dated 14th January, 1842, and the additional opinions of the consulted Judges, dated 28th February last, in respect of these opinions of a majority of the Judges, and in conformity therewith, find, that the instruments, engines and machinery described and referred to in Mr. Smith's report, which, in the circumstances of this case, fall to be held and treated as heritable, and those which fall to be held as moveable property in the succession of the late Mr. Dixon, are respectively as follows, viz.,
First,—That of the instruments, engines and machinery specified in article 4 of the revised condescendence for Messrs. Dixon, No. of process, the following are to be held and treated as heritable:—(1). The blast-engines for blowing the furnaces at Calder Iron-Works, Nos.1, 2 and 3, with blowing apparatus complete, as also the blast-furnaces themselves. (2). Tilt-engine (8-horses power), in very bad order; clay-mill and great going gear from steam-engine for drawing it, and turning-lathe, tilting-apparatus, two hammers and shears, all out of order—all at the Calder Iron-works. (3). Engines for thrashing and corn-mills at Calder, eight-horses power, with pipes from engine to canal (in best order); thrashing-mill (worked by steam-engine; corn-mill (one pair stones for shealing, and one pair for grinding) with the sack-tackle, kiln-head. (4). Faskine pumping engine, 40 fathoms eight-inch pump, in two lifts, with shear-poles, capstan and ropes (in bad order); No. 5, gig-engine, with winding apparatus, pit-head frame and ropes (in bad order); No. 4, winding machine and winding apparatus, conical drum, and pit-head frame and round ropes, wooden
Page: 345↓
Page: 346↓
Second,—That of the instruments, engines and machinery enumerated in article fifth of said revised condescendence for Messrs. Dixon, the following are to be held and treated as heritable,—(1.) Fineries at Wilsontown, viz., a large cistern 8 feet × 3 × 2; finery water-boxes and air-chest, one water trough. (2). Two standards in stone there. (3.) Two circular plates for crane foot; one crane beam, mounted; two wooden ditto there. (4). Gin at Middle Moor Pit; gin with old ropes, (Wilsontown). (5). Greenwall water-engine, with capstan; 16 ½ fathoms 9-inch pump, timber beam and framing. (6). One horse gin, with pit-head frame and pulleys at Govan Colliery. (7). Railway at Port-Eglinton, consisting of 2864 rails, four feet long, 1449 sleepers, one coup rail, two turn plates, 17 crosses and forks for offsets, 1008 heavy slabs for crossing roads, three crosses and forks for offsets (bad casts), and couping machine at Port-Eglinton. And that the other articles and implements enumerated in article 5 of said revised condescendence for Messrs. Dixon, being (1) Smith's hearth-plate, timp in cast-house, ball for breaking heavy goods, 225 coke-yard rails, 89 oven covers, 17 turning-lathes in coke yard, screw stalk in smith's shop, two smith's sweys at Wilsontown. (2). Fourteen water boxes, two breaking racks, two plumber blocks, four pit-head wheels, one cast
Page: 347↓
Page: 348↓
Third,—That the coke oven mounting mentioned in article 6 of the said revised condescendence for Messrs. Dixon is to be held and treated as heritable, and the 20 hearth-stones, 500 feet, mentioned in the said article, are to be held as moveable.
Fourth,—That the blowing-engine for No. 4 furnace at Calder, secondhand, with blowing apparatus, partly erected
Page: 349↓
Fifth,—That the articles and implements enumerated in article 8 of said revised condescendence for Messrs. Dixon, viz.:—(1). Bars, hooks and courses, seven throwing-off and three clay shovels, 22 pig and three sow patterns, breaking down bar. (2). Engine fire irons. (3). Fifteen steel yards and boxes, weights, eight mine grapes, three rakes, four mine boxes, six coke barrows, three coke grapes, one limestone grape. (4). Six setters and .coke shovels, six grapes for ironstone, three pinches, two iron stone carriages, four coke drawing grapes. (5). Beam and scales for pig-iron, weights for ditto, pig-iron barrow. (6). Three rabbles, one cast-iron anvil, two bearers and chains, one wooden tress, all at Calder. (7). Two weighing beams and scales, one weighing machine, one ditto ditto for blooms, two old iron barrows, two wheel trucks, one old coke barrow, one old pig-iron ditto, two ironstone carriages, four-wheeled carriage, old weighing machine at Wilsontown, are all to be held and treated as moveable property.
Further,—Find as to the articles under the sixth head of Mr. Smith's report, which belong to the proprietors of the subjects in which the late Mr. Dixon was tenant, as they did not belong to him at the time of his death, there can be no claim over them as the subject of legitim, reserving however any claim which may arise for meliorations claimable from the landlords, in terms of the leases entered into between them: And with regard to the seventh class in the said report, erections made on subjects under leases by the late Mr. Dixon, and which have been removed by the respondents at the termination of the leases, find that these are moveable, and subject to the claim of legitim on the part of the
Page: 350↓
Mr. Turner and Mr. Sandford for the Appellants, relied upon M'Knight v. Irving, Hume, 412,— Hislop v. Hislop, 16 F. C. 143,— Elwes v. Maw, 3 East, 38,— Lawton v. Lawton, 3 Atk. 13,— Dudley v. Ward, Amb. 113,— Lawton's Exrs. v. Salmon, 1 H. Blac. 259,— Trappes v. Harter, 2 Cro. & Mee. 153,— Davis v. Jones, 2 Bar. & Ald. 165.
The Lord Advocate, Mr. Kelly, and Mr. Anderson, for the Respondent, referred to Stair II., 1, 2, & 15, II., 2, 2,—Ersk. II., 2,4,—Mags, of Musselburgh, Mor. 10585,—Barr, 25 Feb. 1783, Hailes, 919,—Gordon, Hume's Cases, 189,— Niven v. Pitcairn's, Trs. 21, F. C. 204,— Cox v. Stead, 11 S. & D. 672,— Thresher v. East London Water Works, 2 Bar. & Cr. 608,— Farrant v. Thomson, 5 Bar. & Aid. 826,—2 Smith's leading Cases, 114, Lawton v. Salmon, ut supra,— Elwes v. Maw, ut supra.
Page: 351↓
That being the case, having relieved it from the embarrassment of this argument, I have not much to urge to your Lordships upon this case, because, upon the fullest consideration which I have been able to give, both to the English law authorities which were cited, and to the Scotch authorities, by which
Page: 352↓
Great reliance was of course placed upon the case before Lord Hardwicke, in our Court of Chancery here, and a similar case which occurred more recently in the Court of Exchequer, I think in Lord Lyndhurst's time. But there was an attempt made to distinguish this case in principle from that, and to show that there was another inconsistent decision in the Cider Mill case, in one of the cider counties, Worcestershire or Hereford-shire. Now, it is a remarkable circumstance, that of that case we have the most indistinct and unsatisfactory report; we have really nothing that can be called a record of that case. It was cited in the case before Lord Hardwicke; and I must also say that if that case, the Cider Mill case, is to be taken as it is represented to us as regards the substance of the case, and in its result, my mind goes not at all with that decision. It is contrary, undeniably, to the general principles of our law upon the subject, and
Page: 353↓
Can any man say that one of the great brewhouses would belong to the executor because it is erected for the purpose of manufacture, and wholly unconnected with the land? for a brew-house is as much unconnected with any crops upon the land upon which it is situated, as a eider mill can be said to be—it is for the purpose of brewing beer out of malt, which may have been grown in Russia or in Africa. It has nothing to do with the land, as may be seen by those who will take the trouble of looking at any of the brewhouses in London, which are established in places where it would be very difficult to find a blade of grass, much less a crop of barley to make malt of. But although it is a manufactory, nobody says it belongs to the executor, nor is it what the Scotch generally call an Executry Fund—it would go unquestionably to the heir.
The Scotch law appears to me only to differ from the English law in carrying the principles of our law, as laid down in the cases, a little farther, rather than falling short of them. Upon the whole, therefore, I agree with Lord Cockburn; I do not differ from his argument any more than I do from the conclusions to which they lead.
Then, my Lords, I come to the application of these principles in detail, and I must say in the outset, as to that detail,
Page: 354↓
Upon these grounds, therefore, I really have no hesitation whatever, as little as I ever had in any case, in recommending your Lordships to affirm the judgment of the Court below in all its parts.
Page: 355↓
The point which has been already alluded to, namely, that this is not a case between the real and personal representative, but that it is a case between heirs, appears to me to be totally destitute of foundation. Legitim can only be claimed by means of showing the estate to be personal. The preliminary question is, therefore,—Is this personal estate, or is it property attachable to the freehold, and therefore descendible to the heir? The moment we see that the legitim can only be claimed in consequence of the property being part of the personal estate, the question of course assumes its natural shape. Is it personal estate or not? That preliminary question therefore being decided, it entirely disposes of the ground on which this has been attempted to be distinguished from the other cases which have arisen with respect to the claims of heirs and those who are interested in the personalty.
The principal stress of the argument on the side of the appellant has been, that this is to be protected, because it is necessary for the encouragement of trade that this property should be considered as not belonging to the real estate, but as belonging to the personal estate. My Lords, the principle upon which a departure has been made from the old rule of law in favour of trade, appears to me to have no application to the present case. The individual who erected the machinery was the owner of the land, and of the personal property which he erected and employed in carrying on the works. He might have done what he liked with it; he might have disposed of the land; he might have disposed of the machinery; he might have separated them over again. It was therefore not at all
Page: 356↓
If, therefore, this be clearly a question of real or personal estate, and if the rule which in some cases has been acted upon of making a departure from the established principles in favour of trade has no application to the present case, what does it come to? Of course we throw out of consideration all the cases which have arisen between landlord and tenant, and between tenant for life and remainder man—because the departure which has taken place in these cases has no application to the present case. Then the case being simply this, the absolute owner of the land, for the purpose of better using the land, having erected upon and affixed to the freehold, and used for the purpose of the beneficial enjoyment of the real property, certain machinery, the question is— “Is there any authority for saying that under these circumstances the personal representative has a right to step in and to lay bare the land, and to take away all the machinery necessary for the enjoyment of the land?”
Let us consider for a moment, if that be the principle, to what extent it is to go. It is put by Lord Cockburn, (and a very strong illustration it is,) if the owner of the land dig a well and erect machinery for the purpose of using that well, is it competent to the personal representative to come and take away that machinery, and leave the well useless? Yet where is the distinction? Here is machinery capable of being taken away with very little if any damage to the land. Therefore, although machinery is in its nature generally personal property, yet with regard to machinery or a manufactory, if erected upon
Page: 357↓
There is no case whatever which has been cited in which that doctrine has been recognised except the one which has been referred to, the Cider Mill case, as to which we really know nothing, except that at the Worcester assizes, a good many years ago, a Cider Mill was held to belong to the personal estate. Why it was so held, under what circumstances, and whether it was a Cider Mill fixed to the freehold or not, we do not know. We know nothing except that this machine, called a Cider Mill, was decided to go to the personal representative. It is impossible to extract a rule of law from a case of which we know so little as that. And, with that exception, there is a uniform course of decisions, wherever the matter has been discussed, in favour of the right of the heir to machinery erected under the circumstances in the present case; and if the corpus of the machinery is to be held to belong to the heir, it is hardly necessary to say that we must hold that all that belongs to that machinery, although more or less capable of being detached from it, and more or less capable of being used in a detached state from it—still if it belong to the machinery and belong to the corpus, the article, whatever it may be, must necessarily follow the principal and remain attached to the freehold.
My Lords, I do not go into the detail of the particular items which have been objected to. I have looked them through, and quite concur with my noble and learned friend, that if any exception were to be taken with respect to particular articles, as to whether they ought to be adjudged to one or to
Page: 358↓
My Lords, I have no doubt in the world that it should go to the heir, both upon reason and upon precedent. As my noble and learned friend, who last addressed your Lordships, has stated, none of the arguments respecting the benefit of trade, at all apply to a question as between heir and executor, because the owner of the fee being the absolute owner of the land, and of the machinery erected upon it, the whole of it is in him, and he may dispose of it as he thinks fit for the benefit of his family.
Then, my Lords, with reference to the authorities by which we are bound, whatever speculative notions we might entertain with respect to propriety and expediency, if we entertained a different opinion upon that subject, all the cases are quite uniform, both in England and in Scotland, to show that such property shall go to the heir. The only case the other way which has been referred to, is that of the Cider Mill, and there the essential circumstance is left entirely in doubt, whether the mill was affixed to the freehold or not. My Lords, we know
Page: 359↓
Now, my Lords, this was felt to be so strong on the part of the learned and able counsel who argued for the appellants, that they were almost driven to admit that in this case, if the freehold had belonged by hereditary descent to Mr. Dixon, the machinery would have gone to his heir; but they said the land was purchased by him for the purposes of trade, and therefore this introduced a new distinction. It was assumed, that if a great proprietor, such as Lord Londonderry in the county of Durham, were to erect machinery in his coal works, that would go to the heir, and not to the executor; but if a person buys a piece of land for the purposes of a colliery, and erects machinery upon it, that will make a distinction. My Lords, there is not the slightest authority for any such distinction, and it would be most mischievous if we were at all to sanction the introduction of any such distinction. It would lead to great mischief, and indefinite litigation. There are cases, where, as between partners, when land is used as part of the partnership stock, it is considered as personalty, but in those cases the land itself, the soil, is part of the personalty as well as any machinery erected upon it, and the arguments that were urged in this case by the appellant would lead to the conclusion that all the land that was purchased in fee simple by Mr. Dixon, and belonged to him as long as grass grows and water runs, that all that should be personalty just as much as the machinery that was erected upon it.
Page: 360↓
A distinction was attempted to be made between leasehold and freehold, but when we bear in mind that by the law of Scotland the leasehold is realty and that it goes to the heir, the distinction entirely fails.
I am of opinion, therefore, that the interlocutor must be affirmed. I am very glad, and I think it is creditable to the other side, that they did not for any minute pot-lid or miserable chattel bring a cross appeal; because that would only have involved the case in fresh difficulty and caused unnecessary expense. I therefore entirely agree in the motion of my noble and learned friend, that this interlocutor should be affirmed.
Interlocutor affirmed, with costs.
Ordered and adjudged, That the petition and appeal be dismissed this House, and that the interlocutor or judgment, in so far as therein complained of, be affirmed, with costs.
Solicitors: Spottiswoode and Robertson— Grahame, Moncrieff and Weems, Agents.