could only be operated profitably where large crowds of persons were collected, and that the $8,000 which it had already expended, and also the sums which it was then currently expending, under its contract with Kuehn, would be lost unless said buildings were completed. It prayed for a receiver to take charge of the property, and for an account of the moneys expended thereon by the appellant, and the repayment thereof, and for an injunction against the defendant. On this bill a preliminary injunction was granted, as prayed, on May 11, 1899, and a receiver was appointed, who duly qualified, and on May 20th the defendant answered the bill. On June 17th the appellant filed a petition in the case, repeating the substantial allegations of the bill, and further alleging that there was no prospect that the proposed summer resort would ever be opened, and asking leave to remove its scenic railway, which it asserted remained its property under its contract with the defendant. The receiver answered the petition, admitting the facts, and consenting that its prayer be granted, which was done by the court on the same day. On July 3, 1899, the appellec, Young, who is landlord of the demised premises, filed a petition in the case then pending in equity between the appellant and Kuehn, in which he alleged the making of the lease, and that thereafter Kuehn had commenced to build the pavilion and scenic railway for the pleasure of visitors to the grounds, and that the said structures, especially the pavilion, constituted substantial and valuable permanent improvements, but that the appellant, professing to act under the order of the court of June 17th, was rapidly tearing down and removing them from the grounds. The petition then prayed for an injunction to prevent the further removal of the buildings, and for permission to distrain, for rent due, upon the loose lumber and bricks in the hands of the receiver on the demised premises. Upon this petition of the appellee, who had not theretofore been a party to the case, the circuit court passed at once, and without notice to any of the parties to the suit, or an opportunity to them to be heard, a final and peremptory order enjoining and restraining the appellant from the further demolition of, or removing, or in any manner interfering with the building or buildings, or any part thereof, on the demised premises, and also permitting the appellee to distrain upon any distrainable goods found upon the demised premises. From this order of court the appeal was taken. No bond was required of the appellee as a condition of issuing the restraining order.

The proposition that a tenant cannot remove from demised premises structures erected by him thereon, which are so attached to the freehold as to become part of it, is a familiar principle of the common law. A well-recognized exception, however, to this general rule permits the tenant to remove during his term structures erected by him, designed for the purposes of trade, even though 44 A.-65

they be so firmly attached to the freehold that he would not otherwise have the right to remove them. This exception was distinctly recognized in this state in the case of Kirwan v. Latour, 1 Har. & J. 289, and has been repeatedly affirmed since that time. Coombs v. Jordan, 3 Bland, 311; Northern Cent. Ry. Co. v. Canton Co., 30 Md. 347. In the case last cited the court, in the opinion, when discussing the rule prohibiting a tenant from removing fixtures, say: "This rule is by no means inflexible and without exception. Trade fixtures have been held by the earliest cases in which the question arose to form, an exception. No matter how strongly attached to the soil, or firmly imbedded in it, they are treated as personal property, and, as such, subject to removal by the person erecting them. Prima facie, a house, with

its foundation planted in the soil, is real property; yet when it is accessory to trade, and in law a trade fixture, we find all the authorities regard it as personal property." This exception in favor of trade fixtures has been held applicable in the cases we have cited to houses, steam engines, furnaces, railway tracks, cider mills, and like structures. The real question in such cases is not so much the nature of the structure as the purpose for which it was intended. The scenic railway under consideration in the present case was a composite affair, consisting of a pavilion with a series of undulating elevated tracks starting from and returning to it, with the requisite machinery and apparatus and cars to make flying trips for the amusement of its patrons. It was only available for pleasure resorts, and had no general utility. The record shows that Kuehn, the lessee, arranged to have it put upon the demised land as one of the agencies for conducting the business of the summer resort which he intended to establish at that place. It was to all intents and purposes a trade fixture, which he could remove at any time before the expiration of his lease. By the terms of the contract between Kuehn and the appellant the latter retained the "possession and ownership" of the plant until it was paid for. When, therefore, he had obtained leave of the court to take it out of the custody of the receiver, the appellee, as landlord of the demised premises, could not prevent him from removing it, and for that reason the court below erred in passing the order appealed from.

The order does not, in terms, mention the scenic railroad, but it is apparent from the contents of the petition upon which it was passed that it was intended to prohibit the removal of the pavilion, which was the only portion of the plant then remaining on the premises. This order, although in form a restraining order, partakes so thoroughly of the nature of an injunction that the propriety of its passage must be tested by the principles applicable to the issue of that writ. Restraining orders are not entirely without precedent in proceedings in equity in this

state, but they have rarely been used, and then only for temporary purposes, and have always been made interlocutory, and not final, in their operation. Burch v. Scott, 1 Bland, 123, 124; Murdock's Case, 2 Bland, 471, 472; Bonaparte v. Railroad Co., 75 Md. 340, 23 Atl. 784. Such orders, if used at all, should, when they are passed at the time of the filing of the bill or petition, and before answer or hearing of the defendant, never go further than to suspend his action until an opportunity is afforded him to answer and defend, and they should be preliminary in form, and give the defendant an early day on which to move for their rescission. In other words, such orders must be governed by the principles applicable to the issue of preliminary injunctions, which it is well settled must not determine any right, nor necessarily prejudice either party, but simply preserve the property or fund in controversy until the further order of the court. Canal Co. v. Young, 3 Md. 489; State v. Northern Cent. R. Co., 18 Md. 213; Clayton v. Shoemaker, 67 Md. 219, 9 Atl. 635. So much of the order appealed from as was prohibitory in its provisions was, for that reason, also erroneously passed. The latter part of the order, permitting the appellee to distrain on any distrainable goods on the demised premises for rent then due was, in principle, in accordance with. the rulings of this court in the cases of Everett v. Neff, 28 Md. 178, and Gaither v. Stockbridge, 67 Md. 222, 9 Atl. 632, and 10 Atl. 309, but there should have been notice to the receiver, and an opportunity to be heard, before the order was passed. As the principle of the part of the order now under consideration is correct, we would not reverse the action of the court below for the mere failure to give notice, and an opportunity to be heard, to the receiver, who is only an officer of the court, and has no personal interest in the controversy, but the order must be reversed because of the other errors stated in this opinion. Order appealed from reversed, with costs.

L. A. THOMPSON SCENIC RY. CO. v. NOR

VELL.

C. D. McFarland and Peter J. Campbell, for appellant. appellant. Walter R. Townsend and John M. Carter, for appellee.

SCHMUCKER, J. The facts of this case, except in so far as they refer to the petition filed in the case by Stanislaus Norvell and the order of court passed thereon, have been fully stated in the opinion filed at the present term of court in the case of Railway Co. v. Young, 44 Atl. 1024. On June 24, 1899, Norvell filed his petition in the case of the L. A. Thompson Scenic Railway Company against Adolph Kuehn, which was then pending on the equity side of the circuit court for Baltimore county. The petition alleged that Norvell held a mechanic's lien on the buildings on the land demised by John Young to Kuehn, and was a creditor of Kuehn, and then asserted that the order of court of June 17, 1899, allowing the Thompson Scenic Railway Company to remove its partly completed scenic railway from the demised premises, operated as an undue preference to that company over the other creditors, and prayed for a rescission of the order. On this petition the court passed an order rescinding the order of June 17th unless cause to the contrary be shown by a day therein named after due notice to and service of a copy of the order on the Thompson Scenic Railway Company or its solicitor. From this order the plaintiff appealed at once before the time to show cause had expired. As the order was plainly an interlocutory, and not a final, one, the appeal must be dismissed. Appeal dismissed, with costs.

WOOTTON v. WHITE.

(Court of Appeals of Maryland. Nov. 24, 1899.) MORTGAGES-GROWING CROPS-SEVERANCE.

1. A purchaser of land at foreclosure is entitled to crops growing at time of the sale, unless expressly reserved.

2. A mortgagor of land cannot, before an actual severance of a growing crop, defeat, by sale, the right of the mortgagee to sell the crop on foreclosure, or of the purchaser to claim it.

Appeal from circuit court, Montgomery county.

Trover by Edward Wootton against Huldah A. White. From a judgment for defendant, plaintiff appeals. Affirmed.

Argued before MCSHERRY, C. J., and PAGE, PEARCE, FOWLER, BOYD, BOND, and SCHMUCKER, JJ.

Anderson & Bouic, for appellant. Talbott & Talbott, for appellee.

MCSHERRY, C. J. The question presented by this appeal is a simple one, though it has been decided in opposite ways in other jurisdictions. It must now be definitely settled in Maryland. It arose in this way: In 1892 Thomas H. White and wife conveyed by way of mortgage to James C. Holland their equity of redemption in a tract of land lying in

Montgomery county, and by the same mortgage the fee in another and adjoining tract, to secure the payment to Holland of an indebtedness which they owed to him. Subsequently the appellee, Huldah A. White, recovered a judgment against the mortgagor, White, for some $1,600; and this judgment was a lien on the mortgaged property, but was subordinate to the lien of the mortgage. In the fall of 1896 Thomas H. White, the mortgagor, seeded a crop of wheat on both parcels of the mortgaged lands. He purchased from the appellant, Dr. Wootton, the fertilizer used in planting that crop; and in February following, when the mortgage was overdue, he executed and delivered to the appellant a bill of sale of the growing crop in consideration of the sum due for the fertilizer. On May 31, 1897, the attorney named in the mortgage sold the mortgaged premises, with the growing crop of wheat thereon, under the power contained in the mortgage, at public sale, to the appellee, for a price below the aggregate of the liens which were prior to the appellee's judgment, and the appellee realized nothing on her judgment. The mortgage sale was ratified by the circuit court on June 29th, before the wheat was cut and severed from the land. After the mortgage sale the appellant claimed, under his bill of sale, the wheat crop; but the appellee, the purchaser of the mortgaged premises, garnered the crop. Thereafter the appellant brought this suit in trover against the appellee to recover the value of the wheat and straw. Judgment was entered in favor of the appellee, and the appellant has appealed.

The question is, did the appellant acquire under the bill of sale a title to the growing crop, -a title which was paramount to the lien of the mortgage, and therefore superior to any right which the purchaser at the mortgage sale took by virtue of that purchase? If the title which the bill of sale gave to the appellant was subordinate to the lien of the mortgage, then, obviously, the judgment denying the appellant's right to recover the value of the wheat from the purchaser of the mortgaged premises was correct, as there is no pretense that the crop was excepted or reserved from the mortgage sale. If, on the other hand, the bill of sale gave to the appellant a title superior to the lien of the mortgage, it must have been because either the lien of the mortgage did not attach to any crops planted after the execution and delivery of the mortgage, or because the execution and delivery of the bill of sale operated at law and in equity as a severance of the actually growing crops, converted them into detached personal property, and thereby exempted or subtracted them from the lien which attached when they were planted and annexed to the freehold. There is no other alternative. The first has not been, and could not be, contended for, because, though for some purposes growing crops are treated as personal property, and therefore are not within the fourth sec

tion of the statute of frauds, they none the less partake of the nature of the realty, and under a conveyance pass with the soil to which they are united, unless expressly reserved. Coombs v. Jordan, 3 Bland, 303; 8 Am. & Eng. Enc. Law (2d Ed.) 303, 304. The general rule of the common law is that growing crops form a part of the real estate to which they are attached, and from which they draw nourishment, and, unless there has been a severance of them from the land, they follow the title thereto.

There was no actual severance of this growing wheat until after the ratification and confirmation of the mortgage sale, and it comes to the question whether the execution and delivery of the bill of sale in February, 1897, operated as a constructive severance of the crop that did not mature until the summer of that year, and whether, by force of that bill of sale, the crop, which, unquestionably, but for the bill of sale, would have passed to the purchaser of the soil at the mortgage sale, was excluded from the lien of the mortgage, and was vested in the appellant. We have just said that the growing crop would unquestionably have passed to the purchaser at the mortgage sale, had there been no bill of sale. This is incontestably the law. "The purchaser is entitled to the crops growing at the time of the sale to him, in preference to the mortgagor, or any one claiming under him whose claim originated subsequently to the mortgage." 2 Jones, Mortg. § 1658. The author cites the following cases: Shepard v. Philbrick, 2 Denio, 174; Jones v. Thomas, 8 Blackf. 428; Lane v. King, 8 Wend. 584; Batterman v. Albright, 122 N. Y. 484, 25 N. E. 856, 11 L. R. A. 800; Crews v. Pendleton, 1 Leigh, 297; Parker v. Storts, 15 Ohio St. 351; Anderson v. Strauss, 98 Ill. 485; Rankin v. Kinsey, 7 Ill. App. 215; Scriven v. Moore, 36 Mich. 64; Calvin v. Shimer (N. J. Ch.) 15 Atl. 255; Beckman v. Sikes, 35 Kan. 120, 10 Pac. 592; Perley v. Chase, 79 Me. 519, 11 Atl. 418; Montgomery v. Merrill, 65 Cal. 432, 4 Pac. 414; Kerr v. Hill, 27 W. Va. 576; Haydon v. Burkemper, 101 Mo. 644, 14 S. W. 767; Downard v. Groff, 40 Iowa, 597; Sherman v. Willett, 42 N. Y. 146.

It is true that there are cases in some of the other states which hold that the execution of a bill of sale, under the circumstances set forth in this record, works a severance of growing crops; but they are founded either upon some statutory provision, or upon a view of the relation between mortgagor and mortgagee which does not obtain in Maryland. It must not be forgotten that we are not dealing now with the rights which the personal representative of a deceased owner of land has to the crops maturing after the death of the owner, nor with the right of a creditor to seize and sell growing crops, nor with the power of the owner of such crops to sell them by parol when there is no mortgage binding them. These are all aside of the question before us; and that question, to repeat it by

* *

way of emphasis, is, can a mortgagor, who has planted crops that have become subject to the lien of a prior mortgage on the land, constructively sever that crop before it matures or ripens, by merely executing and delivering a bill of sale of the uncut crop to a third party, so as to defeat the mortgagee's or the purchaser's right to claim the crop after he has purchased the land at a foreclosure sale made before the actual physical severance of the crop? The doctrine is definitely settled in Maryland that the mortgagor, while in possession, and before foreclosure, is regarded as the real owner of the property, except as against the mortgagee. Though in dealings with third parties the mortgagor may be treated as the owner of the mortgaged premises, he is not so considered when the rights of the mortgagee are concerned. As between the mortgagor and mortgagee, "by the legal, formal mortgage * the property is conveyed or assigned by the mortgagor to the mortgagee, in form like that of an absolute conveyance, but subject to a proviso or condition; * and upon nonperformance of this condition the mortgagee's conditional estate becomes absolute at law, and he may take possession thereof, but it remains redeemable in equity during a certain period." Duval v. Becker, 81 Md. 546, 32 Atl. 308; Bank v. Lanahan, 45 Md. 407. It is obvious, then, from this relation, that it is no more within the power of the mortgagor to impair the value of the mortgagee's security by cutting out from the lien of the mortgage, and transferring to a third party, discharged of that lien, a growing crop, which, if unsevered, will pass with the land at a foreclosure sale, than it is lawful for him to strip the mortgaged property of its appurtenant easements, as was unsuccessfully attempted in Duval v. Becker. So long as the crop remains physically unsevered, it partakes of the nature of the realty, as between the mortgagor and mortgagee. It forms part of the latter's security for the payment of the debt, and all persons dealing with the mortgagor in respect to it while it remains actually attached to the freehold deal subject to all the rights of the mortgagee, unimpaired and unaffected. Martin v. Martin, 7 Md. 377. This must, in the very nature of things, be so. If the mortgagor may, by the execution of a bill of sale, constructively sever a growing crop planted after the date of a mortgage then in default, and by that act can prevent the purchaser from taking the crop when he buys at foreclosure sale the mortgaged property, with the crop still growing thereon, then the mortgagor has it in his power to lessen the security held by the mortgagee; and subsequent judgment creditors of the mortgagor could, by seizing the crop and selling it under execution, produce precisely the same result. But this latter cannot be done if there has been no actual severance before a foreclosure sale. Batterman v. Albright, 122 N. Y. 484, 25 N. E. 856, 11 L. R. A. 800, and cases in note. So

comprehensive is the rule as to growing crops passing to the purchaser of the land, that even the crops planted by a tenant of the mortgagor after the date of the mortgage pass to the purchaser of the realty upon a foreclosure of the mortgage while the crops are still standing. 8 Am. & Eng. Enc. Law (2d Ed.) 307, and cases in note.

It will be observed that we are dealing only with the question whether a mortgagor may by a bill of sale constructively sever a growing crop, so as to prevent it from passing to a purchaser under a foreclosure sale, when the sale of the land is made before the crop is actually cut therefrom. That he may effectually part with the title to a growing crop, so as to preclude a subsequent mortgage from attaching to it, may be conceded, without affecting the decision of this case. We only mean, however, to hold that, owing to the relation existing between mortgagor and mortgagee in Maryland, the former cannot, before an actual severance of a growing crop, defeat, by the execution of a bill of sale, the right of the mortgagee of the land to sell the crop on a foreclosure, or of the purchaser at such a sale to claim the crop. There is no hardship in this. If the mortgagor goes on and makes preparation for a crop, he does it with a full knowledge that the land, with the crop, is subject to be sold, if the sale takes place before he severs it. Nor does he lose anything by this, for the crop on the land enhances the price. If by this increase the debt be overpaid, he gets the surplus. If not, still the full value of his labor goes (as he had agreed it should go) to the payment of the debt secured by the mortgage. Crews v. Pendleton, supra. In 1 Jones, Mortg. § 697, it is said: "But growing crops are personal property, when severed from the land, and a sale or mortgage of them by the mortgagor amounts to a severance." Several New York cases are cited to support this proposition, and among them is Sexton v. Breese, 135 N. Y. 387, 32 N. E. 133. The case not only does not go the length of the text, but sustains the conclusion we have reached. The facts were these: The owner of a farm upon which was a mortgage sold to a third party a crop of wheat growing thereon, the bill of sale giving to the purchaser the right to secure and harvest the crop. Subsequently the owner of the farm (the mortgagor) executed to the mortgagee a written instrument authorizing the mortgagee to take possession of the farm, rent the same, and apply the proceeds on the mortgage. The person who purchased from the mortgagor, under the bill of sale, the growing wheat crop, went upon the farm to cut the wheat, but was prevented from doing so by the mortgagee, who harvested it; but the purchaser entered and carried it away. In an action of replevin by the mortgagee against the purchaser under the bill of sale, it was held that the latter was entitled to the crop. There had been no sale under the mortgage.

The court, in the course of its judgment, said: "Probably the right of a third person to the growing crops of grain, under a contract of purchase with the owner, would be annulled by the sale upon the foreclosure of a mortgage of the land, according to the decisions in Shepard v. Philbrick, 2 Denio, 174, and Lane v. King, 8 Wend. 584; for then the transfer of the title to the mortgaged premises would carry with it to the purchaser a paramount title to the growing crop. But in the present case that proposition is not before us, and the title of the mortgagor to the mortgaged land was not devested or transferred to the mortgagee with the possession."

Without further elaboration, we think it perfectly clear, both upon reason and the weight of authority, that one who purchases, under a bill of sale or otherwise, a growing crop from a mortgagor, takes the risk of being deprived of the crop if the mortgage should be foreclosed and the land should be sold under the mortgage before the crop has matured and been actually severed from the soil. The crop in the case at bar being unsevered at the time of sale, and being then actually affixed to the freehold, the purchaser of the land became, upon the ratification of the sale, entitled to the growing crop. This is the view which the circuit court took, and its judgment denying to the appellant the right to the possession of the wheat and straw under his bill of sale must be affirmed. Judgment affirmed, with costs above and below.

GOLDMAN v. BRINTON et al. DROVERS' & MECHANICS' NAT. BANK v. SAME.

(Court of Appeals of Maryland.

Dec. 6, 1899.) ESTOPPEL-EQUITY-STATUTE OF FRAUDSMECHANICS' LIENS.

1. Where, by written agreement of the creditors, the court has permitted the receiver of an insolvent to borrow money to complete certain houses in course of erection by insolvent (it being agreed that the money borrowed should be a first lien upon the proceeds of the sale of the property), a lienholder who was present and took part at the meetings of the creditors, and who promised at various times to sign the agreement, but never did, is estopped from later asserting his lien against the proceeds of the sale in preference to that of the borrowed money, where he had full knowledge that such money was to be paid back first out of the proceeds of the sale, and that the other claims were to be postponed; it being shown that he gave his aid to the receiver in completing the buildings under the arrangement, and was one of the auditing committee authorizing the expenditure of the money.

2. A court of equity will enforce a verbal contract, notwithstanding the statute of frauds, where one party has, with knowledge and consent of the other, made partial performance.

3. The assignee of a mechanic's lien takes it subject to the same equities and defenses which exist against his assignor.

Appeals from circuit court of Baltimore city; Henry Stockbridge, Judge.

Actions by Milton Goldman against Daniel L. Brinton and Richard B. Tippett, receivers, and others, and by the Drovers' & Mechanics' National Bank against the same defendants. From an order ratifying the accounts of defendant receivers, plaintiffs appeal. Affirmed.

Argued before McSHERRY, C. J., and PEARCE, FOWLER, BRISCOE, and SCHMUCKER, JJ.

S. S. Field, for appellants. Richard B. Tippett and Daniel L. Brinton, for appellees.

FOWLER, J. The questions presented by this appeal grow out of exceptions to several auditors' accounts which were ratified by order of circuit court No. 2 of Baltimore city in the case of Andrew against Shinnick, pending in that court. A bill for injunction and receiver was filed in the case just mentioned, alleging that William F. Shinnick, who was building a number of houses on the north side of North avenue, between Pulaski and Smallwood streets, in the city of Baltimore, was insolvent, and unable to complete the partly-finished buildings, and that, unless the relief asked was granted, the claims of the plaintiff and the other material men, creditors of the defendant, would be greatly imperiled. The appellees, Messrs. Tippett and Brinton, were appointed receivers, with power to take possession of and complete the houses. They were also authorized to borrow the necessary money for that purpose, and, to enable them so to do, the court, on their petition, ordered that the money so borrowed should be a first lien on the proceeds of sale of the property in question. This order was passed on the 18th of August, 1896, and the following agreement was filed with it: "We, the undersigned, creditors of Wm. F. Shinnick, hereby consent to the receivers in the above case borrowing sufficient money, by mortgage or otherwise, to finish the building and construction of the twenty-two houses mentioned in the above cause; and we hereby consent to said mortgages or borrowed money so raised being prior liens over our respective claims." All the creditors, with the exception of one, signed this agreement, or agreed in writing to be bound by it. That one is the appellant Milton Goldman. In pursuance of the authority given them by the order of court just referred to, the receivers borrowed the sum of $15,000, and completed and sold the houses. The sales have been duly ratified, and the proceeds are in court for distribution. The auditor's report and accounts allowed the receivers in full for the sum of $15,000 borrowed money, and distributed the balance among the other creditors. From the order ratifying the account making this allowance, and thus making the borrowed-money claim of $15,000 a prior lien, the appellants, Goldman and the Drovers' & Mechanics' Bank, have appealed; the interest of the latter being that of an assignee of the me