C. A. 1902 was not intended to be permanent, but was always to be subject to the right of the plaintiff to resume possession of the machinery; and that the agreement was therefore evidence REYNOLDS upon which the jury might find that the machinery had not become a fixture but remained a mere movable chattel. The question as to the effect of a hire-purchase agreement in such a case as this was considered in Hobson v. Gorringe (1), and it was distinctly laid down by A. L. Smith L.J. in delivering the judgment of the Court that the hire-purchase agreement could not be regarded as an element in determining the question with what intention an article was annexed to the freehold. He said: "Now, in Holland v. Hodgson (2), Lord Blackburn, when dealing with 'the circumstances to shew intention,' was contemplating and referring to circumstances which shewed the degree of annexation and the object of such annexation which were patent for all to see, and not to the circumstances of a chance agreement that might or might not exist between an owner of a chattel and a hirer thereof. This is made clear by the examples that Lord Blackburn alludes to to shew his meaning. He takes as instances (a) blocks of stone placed in position as a dry stone wall or stacked in a builder's yard; (b) a ship's anchor affixed to the soil, whether to hold a ship riding thereto or to hold a suspension bridge. In each of these instances it will be seen that the circumstance to shew intention is the degree and object of the annexation which is in itself apparent and thus manifested the intention. Lord Blackburn in his proposed rule was not contemplating a hire and purchase agreement between the owner of a chattel and a hirer or any other agreement unknown to either a vendee or mortgagee in fee of land, and the argument that such a consideration was to be entertained, in our judgment, is not well founded." Again, in the case of In re De Falbe (3), Vaughan Williams L.J. said: "In dealing with the question of fixtures it sometimes becomes material to consider the object and purpose of the annexation, by which I do not mean that there must be an inquiry into the motive of the person who annexed (1) [1897] 1 Ch. 182. (2) L. R. 7 C. P. 328. VOL. I. 1903. (3) [1901] 1 Ch. 523. H 2 v. ASHBY & SON, LIMITED. Collins M.R. C. A. 1902 REYNOLDS V. ASHBY & SON, LIMITED. Collins M.R. them, but a consideration of the object and purpose of the annexation as it is to be inferred from the circumstances of the case." Therefore the facts with regard to the hire-purchase agreement do not appear to be any evidence to rebut the presumption arising from such an annexation to the freehold as there was in the present case. That being so, there does not appear to be any evidence in the case to rebut that presumption. The fact that the person who affixed this machinery did so for the purposes of a manufactory on premises of which he himself was the owner for a term of ninety-nine years affords no evidence in support of the view that the annexation was intended to be only temporary for the better use of the machines as mere chattels; on the contrary, it is rather in favour of the view that the intention was that they should be attached to the factory, and be used as part of it, for the purposes of the business there carried on, as long as that business should continue to be carried on. Having regard to the authorities as to the effect of such an attachment to the premises as existed in the case of this machinery, I think that there was no evidence to rebut the presumption which by law primâ facie arises from the fact of such an attachment. I was unable to gather from the argument of the plaintiff's counsel that there was any other fact by reason of which they contended the case ought to have gone to the jury than the existence of the hire-purchase agreement, which I have already shewn not to constitute an element in the determination of the question. Under these circumstances it appears to me that, upon the authority of Hobson v. Gorringe (1), which is exactly on all fours with this case with the exception that there the mortgagor was owner in fee, whereas here the mortgagor was a lessee for ninety-nine years, a distinction which makes no real difference, the learned judge was right in withdrawing the case from the jury. The second point raised in this case was also dealt with in Hobson v. Gorringe. (1) It was there contended, as it was here, that the case of Gough v. Wood & Co. (2) decided that in such a case as this the plaintiff had a better right than the (1) [1897] 1 Ch. 182. (2)[1894] 1 Q. B. 713. C. A. 1902 V. ASHBY & SON, LIMITED. Collins M.R. mortgagee. In that case it was contended that the fact that the mortgagee had stood by, and allowed the mortgagor to remain in possession and to carry on a trade on the premises, REYNOLDS involved the conclusion that he had licensed the mortgagor for the purpose of that trade to enter into a hire-purchase agreement; and it was held that, the person who had let the goods under the hire-purchase agreement having intervened, and resumed possession of the goods, before the mortgagee had entered into possession of the premises, the latter could not assert a title to the goods against him. The judgments in that case however expressly leave the point open whether the fixtures could be removed in a case where the mortgagee had previously taken possession of the premises. That point arose in Hobson v. Gorringe (1), and was there decided adversely to the person who had let the machine. There the plaintiff claimed to be entitled to remove the machine after the defendant, the mortgagee, had entered into possession of the premises; and it was held that he was not so entitled; and the case was distinguished from Gough v. Wood & Co. (2) on the same ground as that on which this case may likewise be distinguished, namely, that the mortgagee had entered into possession before the plaintiff sought to resume possession of the machine. I should perhaps observe that it is clear law that, though a fixture may be removable as between landlord and tenant, or as between tenant for life and remainderman, being attached so and under such circumstances as to shew it to be a fixture in that sense only, and not so as to make it permanently part of the freehold, yet it nevertheless will form part of the property subject to a mortgage of the premises, and a mortgagor cannot remove it as against a mortgagee. That point was decided in Climie v. Wood (3), which was approved of in Holland v. Hodgson. (4) The plaintiff's counsel, knowing that it would be of no use to contend that these machines came within the description of trade fixtures, contended, as I have already said, that, though attached to the premises, they remained mere movable chattels, and, in support of that contention, they (1) [1897] 1 Ch. 182. (2) [1894] 1 Q. B. 713. (3) L. R. 3 Ex. 257; 4 Ex. 328. C. A. 1902 v. ASHBY & SON, LIMITED. Collins M.R. The referred to the decision in In re De Falbe (1), affirmed in Leigh v. Taylor. (2) But, when that decision comes to be looked at, REYNOLDS it appears to me to decide, not that the tapestries there in question remained mere movable chattels, but that they were fixtures in the sense which I have mentioned, namely, things which, though attached to the freehold, were removable as between a tenant for life and a remainderman. From the observations made by Rigby L.J. in delivering judgment, as reported on pp. 533, 535 of the report in the Law Reports, I gather that he disposed of the case on the footing that the tapestries, though fixtures, were "ornamental fixtures," which were removable as between tenant for life and remainderman. observations of Vaughan Williams L.J. and Stirling L.J. at pp. 535 and 538, 540 are to the same effect. The judgments. of the learned Law Lords in the House of Lords, where the decision of the Court of Appeal was affirmed, appear to me in effect to treat the case on the same footing. Though far from denying that in some cases there may be a question for the jury, I think that, upon the authorities, and in the absence of any evidence to rebut the primâ facie presumption arising from the annexation of this machinery to the premises, the learned judge was right in dealing with the case as he did, and deciding in favour of the defendants. The case of Chidley v. West Ham Churchwardens (3) gives rise at first sight to some difficulty. I asked the plaintiff's counsel whether they could produce any case since Hellawell v. Eastwood (4) where chattels annexed to the freehold as this machinery was had been held to be mere movable chattels and not fixtures, pointing out that, though the general principle laid down in that case had been approved of in subsequent cases, those cases had been distinguished on the facts, and the conclusion of fact in Hellawell v. Eastwood (4) had not been approved of in them. In answer to my question counsel cited the case of Chidley v. West Ham Churchwardens. (3) That was a rating case. It was commented upon by the Court of Appeal in the case of Tyne Boiler Works Co. v. Longbenton (1) [1901] 1 Ch. 523. (3) 32 L. T. 486. Overseers (1), and, if it is to be supported, it must be, I think, on the grounds on which it was there distinguished, namely, that the matters in question in that case had been rated, not as enhancing the value of the realty, but as personal chattels. The Court of Appeal seem to have thought that machines such as these would pass by a demise of the premises. If so, that would seem to dispose of the present case. For these reasons I think the application must be dismissed. ROMER L.J. I am of the same opinion. In the first place I think, having regard to all the circumstances of the case, including the fact that the mortgagor was the owner of the premises for a term of ninety-nine years, that these machines had, as between mortgagor and mortgagee, become fixtures, which no doubt were in the nature of trade fixtures, but were still fixtures, and so formed part of the mortgage security. I also agree in thinking that upon the facts the jury could not properly have found that the machines were not fixtures, and therefore the judge was right in ruling that they were, and not leaving any question to the jury. The authorities, which shew that in a case like this, as between a mortgagor and mortgagee, machines fixed as these were become fixtures, are far too strong to be now questioned. The only case in the series of authorities which throws any doubt on the matter is that of Chidley v. West Ham Churchwardens. (2) That case was fully, and so far as we are concerned finally, dealt with by the Court of Appeal in Tyne Boiler Works Co. v. Longbenton Overseers (1), where it was pointed out that the decision there must be regarded as depending on special circumstances such as are not material for us in the present case to consider, and cannot be looked upon as an authority that machines affixed in the manner and circumstances in which these machines were affixed would not pass by a demise or mortgage of the premises. Putting aside that case, there is a long series of uniform authorities in favour of holding these machines to be fixtures, from which in my opinion we ought not to depart. With regard to the absence of title in the mortgagor as between himself and the plaintiff, (1) 18 Q. B. D. 81. (2) 32 L. T. 486. C. A. 1902 REYNOLDS v. ASHBY & SON, LIMITED. Collins M.R. |