The opinion
Winborne, J.
Counsel for plaintiff, in brief filed here, state that plaintiff will not contend for the wheat mill and the corn mill, which were located in the mill building at the time of the foreclosure. This question then arises: Are the sawmill, shingle mill, cogwheels and tools so annexed to the land as to be fixtures, or do they retain the status of personal property?
The evidence presented on this appeal with relation thereto raises an issue of fact which should have been submitted to the jury under appropriate instructions.
In the relationship between mortgagor and mortgagee the principle of law applicable to fixtures is well settled. In
Moore v. Vallentine,
77 N. C., 188 ,
Pearson, C. J.,
said: “When a mortgagor who is allowed to retain possession . . . makes improvements and erects fixtures, he does so for the purpose of enhancing the value of the property, and having made
this addition to the land,
he is not at liberty to subtract it.”
In
Foote v. Gooch,
96 N. C., 265 , 1 S. E., 525 ,
Smith, G. J.,
said: “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. . . .”
Overman v. Sasser,
107 N. C., 432 , 12 S. E., 64 ;
Belvin v. Paper Co.,
123 N. C., 138 , 31 S. E., 655 ;
Pritchard v. Steamboat Co.,
169 N. C., 457 , 86 S. E., 171 ;
Springs v. Refining Co.,
205 N. C., 444 , 171 S. E., 635 .
Fixtures annexed by the mortgagor of land after execution of the mortgage are subject thereto. 26 C. S., 728.
Foote v. Gooch, supra.
In
S. v. Martin,
141 N. C., 832 , 53 S. E., 874 ,
Walker, J.,
speaking to the method of changing property, personal in its nature, into realty, said: “There must be some kind of physical annexation of the thing to the land, though the nature, and strength of the union is not material, if, in fact, it be annexed. The annexation is in some cases by gravitation alone, or, in other words, the thing is kept in position by its own weight, as in the case of the planks laid down as the upper floor of a gin house and used to spread cotton seed upon, though not nailed or
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otherwise fastened to the building. . . . They have, as it were, a permanent and fixed position, and are in a certain sense stationary — not movable, so as to be in one place today and in another tomorrow. ‘The very idea of a fixture,’ says the Court, in
Beardsley v. Ontario Bank,
31 Barbour, at p. 630, ‘is of a thing fixed or attached to something as a permanent appendage, and implies firmness in position.’ ”
In
Foote v. Gooch, supra,
it is stated: “The intent with which the annexation is made, enters largely into the question of permanency and the right to remove. . . . The test then is the actual attaching or affixing the articles of personalty to the freehold so that they become parcel of the realty. . . .”
There is evidence in the present case tending to show that when the defendant purchased the land under foreclosure, tools, cogwheels and other articles of personal property unconnected with and unattached to fixtures or to the freehold were in the mill building. If this be trué, it is elementary that such articles are personal property.
There is evidence tending to show that the sawmill and shingle mill are portable in character and are not affixed or attached to the realty in the sense of permanency, but in their operations are removed from place to place. If this view be accepted by the jury, then under settled principles of law, the sawmill and shingle mill are personal property. Otherwise they are fixtures.
The judgment of nonsuit below is
Reversed.