Richardson v. Borden. The case was submitted to the circuit court on the following agreed case: "In this case it is agreed between th. parties that the court decide the question involved in this suit, upon the following agreed facts, and render its judgment accordingly, which are as follows, to wit: That Richardson bought a tract of land in said county, on which was a gin-house, in which the gin-stand in controversy stood, as gin-stands usually stand for use, and was the only gin-stand on the place, and worth $175; that Borden made and delivered to Richardson a deed for the land, and Richardson took possession of the premises under it, and that there never was any reservation made of the gin-stand at the sale and execution of the deed; and the court shall decide whether or not the said gin-stand passed to Richardson by said sale and conveyance." These facts being submitted to the court, the court determined that the gin-stand did not pass by the sale to Richardson, and that Borden was entitled to recover. And thereupon the court rendered judgment in favor of Borden. To reverse this judgment, the present writ of error is prosecuted. The only error complained of is, that the court below erred in giving judgment for the plaintiff on the agreed statement of facts. W. Harper & Shelby, for plaintiff in error. Mayers & Lowry, for defendant in error. JEFFORDS, J. The sole question, then, for the court to pass upon is, whether or not, under the agreed case, the gin-stand was a fixture, and whether the title to the gin-stand, in this instance, passed by the deed which conveyed the title to the real estate. It has been a matter of almost universal complaint among lawyers, judges and writers on jurisprudence, that the law in relation to fixtures is, perhaps, less susceptible of being reduced to positive and uniform system than any other branch of legal science. There has been more judicial legislation on this subject, and the rules are less certain and fixed, than any other department of the law with which we are familiar. We do not wish to be understood as intending to say that the law is entirely unsettled, for we have many welldefined rules on this subject; but simply as saying, that what is or is not a fixture seems to depend on the peculiar facts and circum Richardson v. Borden. stances surrounding each particular case, more than any other consideration. A thing or article may have been regarded as a fixture under one state of facts, and the same thing has been held not to be a fixture under another state of facts. Take, for instance, the article of manure, where by the sale of agricultural lands, and whether in heaps or scattered in the barnyard, it is a fixture, and passes as a part of the realty to the vendee; but when upon lands in a village or city, where the lands are not used for agricultural purposes, it is not a fixture, and is treated as personal property. It will be found upon examination that, in determining the question whether a thing is a chattel or fixture, reference must be had to the nature of the thing itself; the position of the party placing it where found; the probable intention in putting it there, and the injury which would result from its removal; and we must also consider the object of the party in placing the article on the premises with reference to trade, agriculture or ornament. In the present case, for example, the article in controversy was in its very nature adapted to the business for which the lands were used. The party who annexed it when he put it there must have intended it should remain as long as it continued serviceable, as the convenience and usefulness of his cotton plantation would have been seriously impaired by its removal. The gin-stand is not only a highly necessary article, but may be declared to be an indispensable one. The doctrine is well established that, as between executor and heir, the vendor and vendee, mortgagor and mortgagee, the strict rule is applied in favor of the heir, vendee and mortgagee, holding many articles to be fixtures, and as belonging to the freehold, which would not be so as between landlord and tenant. In one class of cases the rule of construction is rigorous and stringent, in the other it is relaxed and liberal. This precise question seems never to have been passed upon by this court, but we find many decisions in the cotton-growing states; and as far as our examination has extended, these decisions have all been in one direction. In South Carolina, in the case of Farris v. Walker, 1 Bailey (S. C.), 540, the plaintiff sold and conveyed his plantation to the defendant. Cotton was grown on this plantation and a cotton gin was in the gin house on the premises, attached to the gears. Plaintiff brought an action of trover for the gin, but the court were of opinion that it was a fixture and passed with the freehold. The court say: "The rule on the subject, as between the heir and executor, or Bridges v. Winters. between vendor and vendee, is more rigorous than between landlord and tenant, or the executor of a tenant for life, and the remainderman. In relation to the former, all things which are necessary to the full and free enjoyment of the freehold, and which are in any way attached to it, are held to be fixtures, and pass with it. What ought to be considered a fixture depends materially upon the Lature of the freehold sold. If a plantation, then all such things attached to the land which are usually necessary, or used in the management of a farm, would pass." This authority is directly in point. This doctrine was re-affirmed in the state, in Mc Menna v. Hammond, 3 Hill (S. C.), 331. The same rule is laid down in Alabama, in the case of Bratton v. Clawson, 2 Stewart, 478. The same principle has been followed in Tennessee, in the case of Degrafenreid v. Scruggs, 4 Humph. 451. It seems to us, therefore, that it is clear from the authorities here cited, as well as upon reason, that the gin-stand in this case, standing as gin-stands usually stand for use, being the only one on the place, and no reservation having been made at the time of sale or delivery of possession of the premises, was a fixture and passed with the title to the realty. The judgment of the circuit court is reversed, and this court will proceed to enter such a judgment here as should have been rendered in the circuit court. In an action by the administrators of the payee of a promissory note made in 1859 and payable “in gold” against the sureties thereto, the latter interposed the defense that the words "in gold" were inserted by the payee without their knowledge or consent after delivery. Held, that the altera tion did not change the legal liability of the sureties, and that they were therefore liable. THIS was an action in assumpsit on a promissory note of which the following is a copy: t Bridges v. Winters. '$1,000. "Twelve months after date, we, or either of us, promise to pay to John Winters, or bearer, the sum of one thousand dollars, loaned money (' in gold') with interest at ten per cent per annum: this 26th day of May, 1859. "ROBERT M. HARRIS. A. S. HAMILTON. The defendants, Bridges, Hamilton and Hubbert, alleged in defense in their third plea, that they signed the note as sureties, and that after their signature and delivery the note had been altered without their knowledge or consent by interlining upon the face of it the words "in gold." This plea was demurred to and the demurrer sustained. As the other pleas relate to matters of practice we shall not allude to them. Turner Groves & Turner, for plaintiff in error. J. Niles, for defendant in error. SHACKELFORD, J. There are five assignments of error made by the plaintiffs in error. We shall notice them in their order. The first is that the court erred in sustaining the plaintiffs' demurrer to defendants' third plea. The demurrer admits the allegations of the plea. What are they? That the words "in gold," as they appear in the note sued upon and set out herein, were inserted after the execution and delivery of the note to the deceased John Winters; and that the alteration was done without their "privity or consent, authority or acquiescence." Admitting, for the purpose of this discussion, that the alteration was made by John Winters, the payee of the note, is it such an alteration as will vitiate the note? The rule is well settled, that where any alteration is made which causes the instrument to speak a language different, in legal effect, from that which it originally spoke, it is a material alteration. Does the alteration in the case before us come within this rule? We think it does not. The note bears date on the 25th day of May, 1859; the drawers promise to pay $1,000 twelve months after the date thereof, with ten per cent interest, the consideration being for "loaned money." The legal liability of the plaintiffs in error, on the note in question, seems to us the same without the words "in gold" inserted as Bridges v. Winters. with them. The law, at the date of this note, fixes the legal liability of the plaintiffs in error as to the kind of funds or money this note should be paid in. They admit the consideration was for loaned money to Harris, the principal. Could Harris legally discharge or pay the money due on the note on the 25th day of May, 1860, in any other currency than gold? He could not. View this alteration as an alteration by John Winters, it only expresses what the law implies, and only shows what the law would do if resistance was made to the payment of the note; the alteration, then, if we are right in our views of the rule, was an immaterial one, not changing in the least the legal liability of the parties to the note (Falmouth v. Roberts, 9 M. & W. 469; 5 Mass. 540; 6 id. 519), and the law itself would supply. 15 Pick. 239; 3 Ohio Stat. 445. The rule is different when the alteration has been made fraudulently, or with a fraudulent intent; but there was no allegation in this plea that the alteration was made with such intent, or that it had been made by Winters, the payee. It is manifest that the insertion of the words " in gold" was inserted to show the kind of money loaned to Harris, the principal, and was to create a higher security, or to fix a greater liability to the parties to the note. The plaintiffs in error do not show by their plea that any other kind of goods were loaned to Harris than gold. The proof to the contrary, if any existed, was in the possession of the plaintiffs in error at the filing of their plea; and their failure to allege that any other kind of funds were loaned is conclusive against them that it was gold loaned. If we are right in this view of the facts touching the consideration of the note, the payee, if he made the alteration, was only supplying an omission which was not material, and could in no wise affect the rights or liability of the plaintiffs in error upon the note. Another view of this question: There is a distinction to be observed between an alteration and a spoliation of an instrument, as to the legal consequences. An alteration is an act done upon the instrument by which its meaning or language is changed. If what is written upon, or erased from, an instrument has no tendency to produce this result, or to mislead any person, it is not an alteration. This term is applied when the act is done by the party entitled to the instrument. But the act of a stranger, without the participation of the party interested, is a mere spoliation or mutila |