(after stating the facts). The term fixtures, as designating personal chattels so attached or affixed to the realty as to become part of it, has a different meaning in its application to the relations of different parties as vendor and vendee, representative and devisee or heir, landlord and tenant, the right to detach and remove, being most favorable to the latter. The rule that governs in case of an absolute sale and conveyance is equally applicable to a mortgage, which is but a form of conveyance, and what would pass to *270the vendee, as his own absolutely, will pass to the mortgagee as a security. A mortgagor left in possession and use, who improves the premises by the erection of new works, and the introduction of new machinery, as a means of enlarging his operations, and intended to be a permanent annexation to the freehold, is not at liberty to impair the increased security provided for his debt by removing them.
Trade fixtures even, put up for the purpose of carrying on business since the date of the mortgage, were declared by Lord Romily, in Cuthwick v. Swindell, Law. Rep., 3 Eq., 249, “so far as they are affixed to the freehold, go with it to the mortgagee.” The authorities in support of this proposition will be found, and the subject discussed, in Tyler on Fixtures, at page 566, et seq.
The intent with which the annexation is made, enters largely into the question of permanency and the right to remove. Upon this point, the plaintiff himself testified that the machinery claimed by him, was “for the use of the property” which he expected to redeem, and the lathe was “ to be used permanently with the shop.” He adds, that “ all the property claimed was placed there by me to be permanently used with the foundry property, and to enhance its value.”
The cases in our own reports are in the same line. Bryan v. Lawrence, 5 Jones, 337; Latham v. Blakely, 70 N. C., 368; Bond v. Coke, 71 N. C., 97; Deal v. Palmer, 72 N. C., 582.
In Moore v. Valentine, 77 N. C., 188; the vendee continued in possession under his contract, and put up machinery in order to the more successful conduct of mining operations. He was afterwards adjudged a bankrupt, and at the sale by his assignee, the plaintiff became the purchaser of his estate. Delivering the opinion, PearsoN, C. J., says: “When a mortgagor, who is allowed to retain possession, or a vendee under a bond for title is let into possession, makes improvements and erects fixtures, he does so for the purpose of enhancing the value Pf the propertjq and having made this ad *271 dition to the land, (the italics are in the opinion,) he is not at liberty to subtract it, on the ground that by his own default he is not able to get the title.”
Where the Court below found as a fact that certain articles were in no way connected with the freehold, it disposes of the question of their being fixtures in this Court.
DEFENDANT’S APPEAL.
This was the defendant’s appeal in the foregoing case.
Mr. John A. Moore, for the plaintiff.
Messrs. W U. Day, R. 0. Burton and Jos. B. Batchelor, for the defendant.
The test then is the actual attaching or affixing the articles of personalty to the freehold, so that they become parcel of the realty, and these passed to the purchaser at the sale under the mortgage. We cannot undertake to say whether all the articles enumerated in the schedule fulfill the requirements; and as the appellant must show error, we must assume that they do.
There is no error, and the judgment must be affirmed.
No error. Affirmed.
The defendant’s appeal is from an alleged erroneous ruling that the articles mentioned in schedule two, more than one hundred in number, were not the property of defendant.
It is found as a fact by the Court, that these “ articles were’innoway connected with the foundry or buildings, but were patterns or moulds and tools which were movable.” This disposes of the question as to their being fixtures, and determines the plaintiff’s property therein.
There is no error, and the judgment is affirmed.
No error. Affirmed.