Williams’s Appeal.
Where a court of equity takes cognizance of a cause of litigation, it will dispose of every subject within the circle of contest, whether the question be of remedy or of distinct yet connected topics of dispute.
A supplemental bill in equity, in aid of a final decree in equity, the object of which is to compel the carrying out of the decree, and to give full and complete effect to it, will be entertained.
The case of Winton’s Ap., 97 Pa. 385, applied.
On a supplemental bill in equity, it appeared that the original billin equity •was for partition. Under the original bill, a sale was had of the real estate in controversy, a slate quarry, and was purchased by the complainant in the supplemental bill. After the sale, and before the delivery of the deed by the master, the defendant in the supplemental bill removed a portion of the machinery and fixtures upon the property, used in quarrying the slate and preparing it for market. The defendant not having received his share of the purchase money, the complainant prayed that the value of the jfixtures so removed should be deducted from it. Held, that the court had jurisdiction to entertain the supplemental bill, and that the deductions should be made.
On a master’s sale in partition of a slate quarry, articles which were useful and necessary in operating the works, and which were visible on the property at the time of the sale, as between vendor and vendee, pass as fixtures by the sale.
Feb. 7, 1889.
Appeal, No. 79, July T. 1888, from a decree of C. P. Lehigh Co., dismissing exceptions to a master’s report on a supplemental bill in equity, by Henry Fulmer against David Williams, at Jan. T. 1881, No. 1. Williams and McCollum, JJ., absent.
The supplemental bill averred: The complainant heretofore filed in this court a bill for the-partition of certain real estate, owned in common by the complainant and defendant, and, by proceedings therein, the real estate was sold by the master, and a deed in pursu*275anee of a decree of this court, was executed and delivered to the complainant by the master. By virtue of the deed, the complainant' became owner of the whole property referred to. Before and at the time of the sale by the master, there were upon the premises certain fixtures, machinery, etc., that were a part of the realty, and were used in operating the quarry, open and being worked upon the premises, and, by reason thereof, were a part of the realty, and, as such, were purchased by the complainant; and were conveyed to him by the deed executed and delivered by the master. The following is a list of the fixtures: One derrick, one iron chain hoisty one No. 3 pump, three pairs. of pipe tongues, one hundred and twenty feet of railroad iron and lot of spikes, one blacksmith’s vice, two dressing machines, one box chain, three hoisting chains, one log chain, two tables for finishing blackboards, one box, two pieces of wire rope, a large lot of slate, tools and fixtures. Since the day of sale, and before the date of its final confirmation and the delivery of the deed, the defendant removed and took away from the premises all the articles aforesaid, well knowing they were part of the realty, and as such were the property of the complainant. The purchase money paid by the complainant to the master for the property has not yet been distributed, and is now in the hands of the master for that purpose. By reason of the removal of part of the fixtures by the defendant, the value of the property was greatly decreased.
The bill prayed: 1. That the master be directed to inquire into- and determine the number and value of the fixtures removed by the said defendant since the date of sale, and deduct the same from the share or portion coming to the said defendant out of the fund for distribution. 2. That the complainant may have a decree that he be paid out of the fund for distribution the value of the property wrongfully recovered by the defendant. 3. General relief.
The answer denied that the articles mentioned in the bill were a part of the real estate or that they passed by the sale. The case was referred to John Rupp, Esq., as master, who found the following facts:
“ 1. — David Williams and Henry Harper were the owners of a tract of slate land in Washington Township, Mr. Williams owning a two-thirds interest in said land and Mr. Harper a one-third interest, they holding their respective interests as tenants in common. Upon this tract of land there was an open slate quarry worked by Williams & Harper and also a slate-mantel and blackboard factory and a factory for manufacturing roofing slate.
“ 2. — -The undivided interest of Harper in this property was levied upon by the sheriff on a judgment against Harper, and his interest therein was sold to the Easton National Bank and a deed for the same acknowledged on Oct. 4,1880, and, by deed dated Oct. 15, 1880, the same was sold to the plaintiff.
“ 3. — Subsequently a bill was filed by the plaintiff against the .defendant for partition of said real estate, which resulted in a decree *276ordering partition to be made and subsequent proceedings resulted in a decree directing tbe master to sell said real estate at public sale.
•“ 4. — On Aug. .3,1882, said real estate was exposed to public sale and was sold to Henry Fulmer, the plaintiff, for the sum of $34,000, and a deed was executed and delivered by the master to Fulmer for the same.
“ 5. — On Sept. 11,1882, in pursuance of an agreement between the parties, the court made an order directing the master to pay to Henry Fulmer, $9,333.33, and to David Williams, $18,666.66, out of the purchase money and the same was so paid. On Nov. 14, 1882, this supplemental bill was filed. On Oct. 19, 1882, under an order of court, the master paid the costs and expenses out of the fund arising from the purchase money, and, in pursuance of an order of court of Dec. 19, 1882, the master paid the balance of the purchase money, amounting to $4,763.61, to said Fulmer and Williams; $1,587.87 to Fulmer and $3,175.74 to Williams. This order was .made not to affect the rights of either party to the supplemental bill pending.
“ 6. — Before the master’s sale,Williams removed or had removed, under his directions, one iron hoist from the premises, and, after the sale to Fulmer, but before Fulmer took possession, Williams had the following articles removed from the premises under his orders and directions, to wit: Three squares, two hammers, one shovel, one monkey wrench, two S wrenches, two split chisels, two hand saws, one compass, two ci’ow bars, one hoist, two tables, one of them called a cutting bench and the other a polishing bench, one blacksmith’s vice, one derrick boom, one trough, one tub, 120 feet of railroad iron, one pump, two slate dressing machines, about 200 feet of wire rope, one marbleizing box, two log chains and three pipe tongues.
“ 7. — All these articles that were removed were used and were necessary tools and machinery, in quarrying and dressing roofing slate, and blackboard and mantel slate, and preparing the same for the market, and all of them were used in some stage in the preparation of slate for- the market at this quarry and factory.”
“ 10. — The two tables were used in the finishing department of the factory, the one was called a cutting bench and was used for the purpose of squaring blackboard and mantel slate on it, the other was a polishing bench and was used to put the blackboard and mantel slate on to polish them. They were not fastened to the building in any way but stood on legs. They were peculiarly adapted for the purpose for which they were used.
“ 11. — The derrick boom was the boom of a broken derrick that had formerly been used at the quarry for lifting stones out of the quarry. It broke, and a new boom was put in, the derrick, the most of the old one, being still in use. Several years before the sale, it lay near the edge of the quarry.”
“ 13. — The trough was a wooden trough in the factory about six feet and a half long, not fastened to the building in any way. It was used to wash off the blackboards in the finishing process. *277The tub was the half of a molasses barrel not fastened to the building and was used to catch the water coming from the polishing process. A trough and tub of some kind were necessary in the process-of finishing and polishing mantels arid blackboards.
“ 1L- — The railroad iron consisted of iron rails about 120 feet in length composing a part of a railroad laid down on the rubbish pile for the purpose of moving trucks out thereon to carry out tha rubbish from the quarry to the rubbish pile. The rails were spiked down on sills laid in the ground. These rails were taken up on the morning of the day of sale but not removed until some days after the sale. These rails were purchased by Mr. Williams, and the railroad made when he was operating the quarry on his own account and claiming to own the whole of the quarry and after the sheriffs sale of Harper’s interest. The sills were not removed but remained when Fulmer took possession.
“ 15. — The pump that was removed was a duplicate steam pump. Originally, when the engine and boiler were put up at these works, a pump was put in also. This pump got out of repair. Then another pump was got, of the same size, kind and make, and was put in and used for several years. And the first one was sent on to have it repaired. ' Both pumps were made at the Norwalk Iron Works. After the second pump had been used for some time, it began to get out of repair; and the first, in the mean time, having come back repaired, it was put in and the second one taken out and placed in the engine room, where it remained until after the sale to' Fulmer, when Williams removed it. This pump was put in and used quite a while before the sale of Harper’s interest by the sheriff.. There is a good deal of water in this quarry and as soon as the works stop pumping, the quarry fills up with water, and, in order to prevent this, it becomes necessary to have a duplicate pump to put in, in case the one in use gets out of repair. This pump, according to the testimony of Mr. Williams, and he is not contradicted in this, was bought and paid for by him out of his own funds at the time he- and Harper were running the quarry and factory.
“ 16. — There were two slate dressing machines removed by Mr. Williams after the sale to Fulmer. These machines are worked by a treadle with the foot. They are used to cut the slate into proper sizes. They can be moved from place to place and. are not fastened to the building. They are necessary for the proper working of all slate quarries. Without' them, slate could not be manufactured, And they are machines that are peculiarly adapted and constructed for this kind of work and could not be used in any other business or for any other purpose.
“ 17. — There was about 200 feet of wire rope removed by Mr. Williams, or by his orders. This rope had been used on the derrick that broke. See 11th finding of fact. After the derrick was repaired, a new wire rope was procured, and the old one, which had been used some, remained on the premises out of use until after the-sale, when it was removed. It had been in use about one year or a little over.
*278“ 18. — Tbe marbleizing box was a wooden box six or eight feet long, four or five feet wide and about eighteen inches deep. It stood on legs and was not fastened to the building. It was used in the chemical process of painting slate mantels. The chemical stuff used for this purpose was put into this marbleizing box. This box was necessary in the marbleizing department of the mantel factory.”
“ 20. — On the fi. fa. against Harper, prior to the sale of Harper’s interest in the real estate, his right, title and interest in the personal property of the firm of Harper & Williams was sold at sheriff’s sale and purchased by Mr. Williams, without, however, designating any particular articles of personal property.
“ 21.- — -From the time of the sale of Harper’s interest by the sheriff, to the time of the sale by the master, Mr. Williams worked and operated this quarry and factory on his own behalf and for his own benefit, claiming to be the sole owner thereof, denying that Fulmer had any right, title or interest to, or in, this quarry or the property, real or personal.
The 8th, 9th, 12th, and 19th paragraphs refer to articles excluded by the master and to which no exceptions were taken. The values of' the articles were also found by the master.
On the above facts, the master reported that the court had jurisdiction to entertain the supplemental bill.
He further reported : “ The rule deduciblé from all the authorities, as applied to the case in hand, is: Were the articles in question such as were suitable and proper and necessary for the purpose of carrying on the business of mining and manufacturing roofing, mantel and blackboard slate ? If so, they were fixtures and passed with the realty as a part thereof. Many cases cited by defendant’s counsel speak of the question of intention in connection with the question of fixtures, but those are cases, all of them, arising between landlord and tenant, and upon the question of whether the fixtures are of such a nature that the tenant may or may not remove them during the term, and have no application to the question involved in this case. Where the contention is between vendor and vendee, as this case must be treated, or between debtor and creditor, the question of intention to make fixtures a part of the realty does not arise. See Yoorhis v. Freeman, 2W. & S. 116, and Ege v. Eulle, 84 Pa. 333.
“Nor has the custom, prevailing in the slate region where this quarry is located, anything to do with the case. ‘ The rule of law in relation to fixture, cannot be evaded by proving a custom in opposition to it.’ Christian v. Dripps, 28 Pa. 271. Hence all the evidence offered upon this point on behalf of the defendant is irrelevant and must be disregarded.
“ In order to determine what articles are fixtures and a part of the realty in this case, it is not necessary to inquire whether the articles were procured before or after the interest of Harper in the realty was sold at sheriff’s sale, nor whether they were procured *279and paid for out of the partnership funds of Harper & Williams or by Williams individually. If they were procured for use upon these premises and were necessary for the purpose of carrying on the business of mining and manufacturing slate, and were actually used for that purpose, they became fixtures as between the parties to this controversy, although paid for by Williams alone. Indeed, as already stated, after the sheriff’s sale, Williams operated this quarry and factory on his own account and claimed to be the sole owner of the realty, and, therefore, whatever machinery he put upon the premises, that were proper and necessary and were used in operating this quarry and factory, became fixtures as far as the adverse claimant is concerned. See Christian v. Dripps, supra.
“ Nor does the fact that Williams purchased the right, title and interest of Harper in the personal property of Harper & Williams, affect the question now at issue. No particular articles of personal property were sold and none were mentioned. By that sale, Williams acquired title only to Harper’s interest in the personal property of the firm of Harper & Williams and not to fixtures, and even if he had, he would have made them fixtures again by the use he made of them upon these premises. Tested, then, by the rules of law, thus established, it becomes necessary to determine which of the articles in controversy are fixtures. This is not a difficult task. The tools, named in the 8th finding of fact, to wit: squares, hammers, saws, chisels, shovels, wrenches, etc., are such tools as could be used anywhere in any kind of business where such tools are used, and are therefore not peculiarly necessary for this kind of business. The same is true of the log chains mentioned in the 18th finding of facts. These articles, in the opinion of the master, do not fall within the rule and are not fixtures. The iron hoist mentioned in the 9th finding of fact was clearly a fixture at the time it was removed, but this was before the master’s sale. It must, therefore, be presumed that its value did not enter into the purchase money paid for the property and hence can not be taken into consideration in this case. The vice mentioned in the 12th finding of facts would have been a fixture if put upon these premises by Williams or by Harper & Williams, but it seems to have belonged to the firm of Brown & Williams, who had nothing to do with the quarry, and who took it away again. With this vice or the value thereof, the defendant can therefore not be charged. All the other articles in controversy, to wit: two tables, the derrick-boom, the trough and tub, the railroad iron, the steam-pump, two slate-dressing machines, the wire-rope and the marbleizing box, clearly come within the rule and must be treated as fixtures. As far as the pump, wire-rope, and derrick-boom are concerned, they not having been in use at the time of the sale, it is only necessary to refer again to the case of Yoorhees v. Freeman, supra.
“ The total value of the articles removed by the defendant, which have been found to have been fixtures on the day of sale, appears, from the foregoing findings of facts, to have been $357. *280To this, interest is to be added from the day of the final confirmation of the sale, Aug. 27, 1882, to the time of the making of this report, Feb. 6, 1884, to wit: $30.70, making the total amount with which defendant is to be charged $387.70.”
The defendant filed exceptions, alleging that the master erred, inter alia, in holding, 12, that the court had jurisdiction in equity to grant the relief asked by the complainant; 13, that all evidence of the defendant bearing upon the question of intention to annex must be disregarded; 14, that it was immaterial whether the articles were purchased before or after the sale of Harper’s interest in the business, or whether by the firm, or by Williams for his own use; 15, that the articles named by him as such were part of the real estate and fixtures and that their value was $357; 16, in not dismissing the complainant’s bill.
The following decree was entered :
“ [The exceptions are dismissed upon the opinion of the learned master.] [2]
[“March 5, 1888, this cause, upon supplement bill, filed Nov. 14, 1882, came onto be heard and was argued by counsel, whereupon it is ordered, adjudged and decreed that the defendant, David Williams, pay to the plaintiff, Henry Fulmer, $484.61, and further that he pay the costs, including the plaintiff’s bill of costs.”] [1.]
The assignments of error specified, 1, 2, the portions of the decree included within brackets, quoting them; and, 3-7, the action of the court in dismissing defendant’s exceptions, quoting them.
R. E. Wright, Jr., of R. E. Wright's Sons, for appellant.
The true criterion of a fixture is the united application of three tests ; 1, real or constructive annexation to the freehold; 2, application to the use or purpose to which the realty is appropriated; and, 3, the intention of the party making annexation, to make a permanent accession to the freehold. Ewell on Fixtures, 21; Voorhis v. Freeman, 2 W. & S. 117; Teaff v. Hewitt, 1 Ohio St. 511; Potter v. Cromwell, 40 N. Y. 296; 3 Stockton, N. J., 29; Voorhees v. McGinnis, 48 N. Y. 278; McRae v. Bank, 66 N. Y. 489; Hill v. Sewald, 53 Pa. 273; Tifft v. Horton, 53 N. Y. 377; Harmony Building Ass’n v. Berger, 99 Pa. 324.
The master was in error in rejecting the evidence of the defendant on the question of intention. Lawton v. Lawton, 3 Atk. 13; Hind’s Est., 5 Wh. 138; Justice v. Nesquehoning Valley R. R., 87 Pa. 28; Meigs’s Ap., 62 Pa. 29; Hey v. Bruner, 61 Pa. 90; Heffner v. Lewis, 73 Pa. 302; Coleman’s Ap., 62 Pa. 277; White’s Ap., 10 Pa. 252; Lemar v. Miles, 4 Watts, 330.
When Fulmer bought the real estate, it was in face of the fact that Williams alone was in possession of it, operating the quarry with machinery in his own possession, the full title to which he claimed by virtue of a sheriff’s sale, and that he removed all this property before Fulmer got title. Where a fixture of this sort is sold as personal property, without objection from the owner thereof, *281the sale passes title to the chattel. Piper v. Martin, 8 Pa. 206; Shell v. Haywood, 16 Pa. 530; Mitchell v. Freedley, 10 Pa. 198; White’s Ap., 10 Pa. 254; Ford v. Cobb, 20 N. Y. 344; Seitzinger v. Marsden, 2 Penny. 463; Heffner v. Lewis, 73 Pa. 302; Hey v. Bruner, 61 Pa. 87.
The court had no jurisdiction. Gilder v. Mervin, 6 Wh. 522; Strasburg R. R. v. Echternacht, 21 Pa. 222; Winters’s Ap., 61 Pa. 307; Brightly’s Eq. Jur. 49.
Edward Harvey, for appellee.
The court had full jurisdiction to entertain the supplemental bill. Odd Fellows’ Savings Bank’s Ap., 23 W. N. C. 85; Winton’s Ap., 97 Pa. 385; McGowin v. Remington, 12 Pa. 63; Souder’s Ap., 57 Pa. 498; Wilhelm’s Ap., 79 Pa. 121; 1 Story Eq. Jur., § 64; Rathbone v. Warren, 10 Johns. 587; Chambers v. Cannon, 62 Texas, 293; C. & T. R. R. v. Steinfield, 42 Ohio, 449; McMurray v. Van Gilder, 56 Iowa, 605; Hepburn v. Dunlop, 1 Wheat. 197; Tayloe v. Ins. Co., 9 How. 390; Armstrong v. Gilchrist, 2 Johns. Cases, 424; Wright v. Atkyns, 1 V. & B. 313; Bailey v. Hobson, L. R. 5 Ch. Ap., 180; Kelsey’s Ap., 113 Pa. 119; Reed v. Fidelity Co., 113 Pa. 578; Wright v. Vickers, 81 Pa. 122; Brush Electric Co.’s Ap., 114 Pa. 574; Bierbower’s. Ap., 107 Pa. 14; Kirkpatrick v. McDonald, 11 Pa. 387.
The master has found as a fact that the defendant removed certain fixtures from the property sold in partition after the sale by the master, and before delivery of the deed to Fulmer. Great weight is given to such findings. Phillip’s Ap., 68 Pa. 130; Kutz’s Ap., 100 Pa. 75; Kisor’s Ap., 62 Pa. 428; Sproull’s Ap., 71 Pa. 137; Price’s Ap., 54 Pa. 472; Chew’s Ap., 45 Pa. 228.
All the machinery of a manufactory which is necessary to constitute it, and without which it would not be a manufactory at all, must pass for part of the freehold. Voorhis v. Freeman, 2 W. & S. 119; Ege v. Kille, 84 Pa. 340; Morris Ap., 88 Pa. 368; Ewell on Fixtures, 22.
The intention to make a thing, annexed to or placed upon the freehold, personal property, does not alter its Jegal character of fixture, if it be such. Rogers v. Brokaw, 25 N. J. Eq. 496; Capen v. Peckham, 35 Conn. 88; Snedeker v. Warring, 12 N. Y. 178; Christian v. Dripp, 28 Pa. 271; Building Ass’n v. Berger, 99 Pa. 324; Johnson v. Mehaffey, 43 Pa. 309; Rogers v. Gilinger, 30 Pa. 185.
The railroad was a fixture. Patent Peat Co., 17 L. T., N. S. 69. A lathe in a factory is a fixture. Hoskin v. Woodward, 45 Pa. 42. Rolls in a mill, although not attached to the realty, pass with the freehold. Pyle v. Pennock, 2 W. & S. 390. Corporal attachment is not the test, for a fixture may be held in its place only by the attraction of gravitation. Voorhis v. Freeman, 2 W. & S. 118. Steam pumps may be fixtures. Quiny v. Manhattan Co., 24 N. J. Eq. 260. Yats in a dye-house, whether fastened to the building or not, pass to the heir and not to the executor. Ewell on Fixtures, p. 214. Tie-chains, although temporarily removed for convenience, are fixtures. Wadleigh v. Janvrin, 41 N. H. 503. So a *282wooden cistern set' on blocks may be a fixture. Cole v. Roacb, 37 Texas, 413. Fragments of building, blown down by a tempest, pass to the purchaser at a judicial sale, as realty. Rogers v. Gilinger, 30 Pa. 185.
Feb. 18, 1889.