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would continue to be held and enjoyed by Joseph G. Horton as he had formerly held and enjoyed it, or in any way to his, said Joseph G. Horton's, benefit, the conveyance is void as against the creditors of Joseph G. Horton, or this administrator."

The jury returned a verdict for the tenant, and the demandant alleged exceptions.

Reed & Dean, for demandant.

It is admitted that the general rule, that a deed cannot be impeached by any statements or acts of the grantor made or done after the delivery of the deed, is sustained by certain decisions of this court. Bridge y. Eggleston, 14 Mass. 245; Gates v. Mowry, 15 Gray, 564. The principle upon which this rule is based has many exceptions. This case presents a just and legal exception to that rule. Horton v. Weiner, 124 Mass. 92; Jordan v. Osgood, 109 Mass. 457; Lynde v. McGregor, 13 Allen, 172; Bridge v. Gray, 14 Pick. 55; Gay v. Bowen, 8 Metc. 100; Daggett v. Shaw, 5 Metc. 223; White v. Loring, 24 Pick. 322; Blake v. Everett, 1 Allen, 248; Hyde v. Middlesex Co., 2 Gray, 267; Hodges v. Hodges, 2 Cush. 455; Adams v. Davidson, 10 N. Y. 309; McDowell v. Rissell, 37 Pa. St. 164; Hartman v. Diller, 62 Pa. St. 43; Pier v. Duff, 63 Pa. St. 59. See Rice v. Cunningham, 116 Mass. 469; Lukins v. Aird, 6 Wall. 78; Coolidge v. Melvin, 42 N. H. 510; Peterson v. Farnum, 121 Mass. 480.

M. Reed, for the tenant.

Declarations of a grantor subsequent to his deed are inadmissible to show his deed void as to creditors. Aldrich v. Earle, 13 Gray, 578; Gates v. Mowry, 15 Gray, 564; Şimpson v. Carleton, 1 Allen, 115; Tapley v. Forbes, 2 Allen, 20; Winchester v. Charter, 97 Mass. 140; Roberts v. Medbery, 132 Mass. 100; McAvoy v. Wright, 137 Mass. 210. See Kellogg v. Thompson, 142 Mass. 76; S. C. 6 N. E. Rep. 860.

MORTON, C. J. The rule of law is well settled that, after a conveyance of real estate, the declarations of the grantor in disparagement of his grant, made in the absence of the grantee, are never admissible in evidence against the grantee. Winchester v. Charter, 97 Mass. 140; Roberts v. Medbery, 132 Mass. 100, and cases cited. The court therefore rightly excluded the declara- . tions of Joseph G. Horton offered by the plaintiff.

· The first ruling requested by the plaintiff was properly refused, because it assumes that the defendant admitted that the deed to him was given to protect the father from his creditors, of which there was no evidence.

The third ruling requested was also properly refused. The court instructed the jury, in accordance with the second request of the plaintiff, that “if the purpose of the conveyance to the son was to delay, defraud, or defeat other creditors of the father, and the sons participated in this intent, whether the deed was voluntary,—that is, without consideration,—or for a consideration past or present, it iş void against the claims of creditors, or of the administrator duly authorized to sell all his real estate for payment of debts.” It would be erroneous to instruct the jury, as the third request of the plaintiff imports, that if a father makes a deed to his son in good faith, and without any intent to defraud creditors, it would be conclusive evidence of fraud, which would avoid the deed, if the son permitted the grantor to occupy the premises in any way to his benefit. Exceptions overruled.

(143 Mass. 108)

COOPER V. JOHNSON. (Supreme Judicial Court of Massachusetts. Essex. November 24, 1886.) FIXTURES-BOILER AND TANÁ FASTENED TO BRICK-WORK BY CEMENT BY TENANT.

A boiler placed by a tenant on a foundation of brick-work and cement, the edges of the brick-work being cemented before the boiler was placed thereon, “to keep

v.9N.E.no.1-3

it tight," and a tank similarly placed, do not become a part of the realty, where it is apparent that the articles could be used equally well elsewhere, and that the fastening, such as it was, was merely to keep them in place.

This was an action of replevin. The plaintiff offered evidence tending to show that on January 26, 1885, William H. Winslow & Co. conveyed to him, by a bill of sale, certain personal property consisting of a wagon, harness, three kettles, one upright tubular boiler, one iron tank, an iron press, and platform scales, also ladles, shovels, one iron tank for boiling grease, and one small iron kettle, with piping connecting it with the boiler; that defendant, a deputy-sheriff, attached the property in question, on June 22d, upon a writ against said Winslow & Co. in favor of certain Misses Nichols, landlords of said Winslow & Co., upon whose premises the articles replevied were located. Upon cross-examination the plaintiff' testified that the tubular boiler was placed upon a foundation of brick-work and cement,—the edges of the brickwork, upon which the boiler was placed, bing cemented, before the boiler was placed thereon, to keep it tight,--and that the iron oblong tank was similarly placed. The defendant contended that the tank and upright tubular boiler were part of the realty. The court instructed the jury, as to the boiler and tank, that, for the purposes of the trial, the jury would not be justified in finding that either was part of the realty, but both were to be taken as personal property. The jury found for the defendant as to the scales and one kettle, and for the plaintiff as to the rest of the articles, and the defendant alleged exceptions.

C. Sewall, for defendant.

The question is to be determined, not as between mortgagor and mortgagee, nor as between landlord and tenant, nor as between vendor and purchaser of real estate, but upon the principles laid down in Bliss v. Whitney, 9 Allen, 115, and cases therein cited. The plaintiff never was tenant. Between landlord and tenant, fixtures which the tenant or his vendee suffers to remain there after his term become a part of the realty, which neither he nor his vendee can afterwards remove. Gaffield v. Hapgood, 17 Pick. 192. The court should have, upon the whole evidence in the case, left the jury to find the facts, after explaining to them the law applicable in such cases.

Chas. W Richardson, for plaintiff.

There is no precise test to determine whether articles become a part of the realty. It depends upon the relations of the parties, the character of the articles, and their adaptation to the building, and generally upon the circumstances of each case, as indicating the intention of the parties. Hubbell v. East Cambridge Sav. Bank, 132 Mass. 448; Pea v. Pea, 35 Ind. 387; Funk v. Brigaldi, 4 Daly, 359. These are articles which are incidental merely to the particular business carried on in the building at the time. McConnell v. Blood, 123 Mass. 47. See Kelley v. Border City Mills, 126 Mass. 150; Whiting v. Brastow, 4 Pick. 310. What was the intention of the parties is an important question. Hubbell v. East Cambridge Five-cent Bank, 132 Mass. 448; Pea v. Pea, ubi supra. The mode of annexation does not seem to differ essentially from that of the boiler in McLaughlin v. Nash, 14 Allen, 136. The plaintiff was not obliged to remove the property at the time the bill of sale was given. See Holbrook v. Chamberlin, 116 Mass. 155; Doty v. Gorham, 5 'Pick. 489; Watriss v. First Nat. Bank, 124 Mass. 575; Wall v. Hinds, 4 Gray, 270.

C. ALLEN, J. There was no contradictory evidence, and it is assumed by both parties that the facts testified to by the plaintiff's witnesses were true. It thus appears that the boiler and tank were placed in the building by Winslow & Co., who were tenants at will. Whether their tenancy had ended or not is not mentioned in the bill of exceptions. The boiler was placed on a foundation of brick-work and cement; the edges of the brick-work being cemented before the boiler was placed thereon, to keep it tight,—that is, in place. The tank was similarly placed. It is apparent that these articles could be used equally well elsewhere, and that the fastening, such as it was, was merely to keep them in place. They were easily removable. There is nothing to show that the defendant contended, at the trial, that a reasonable time for their removal had expired, and no such question is presented by the bill of exceptions. The boiler and tank remained personal property, and, indeed, were so treated by the defendant and the owners of the building in making the attachment. Hubbell v. East Cambridge Sav. Bank, 132 Mass. 448; Carpenter v.Walker, 140 Mass. 416; S. C. 5 N. E. Rep. 160. Exceptions overruled.

5.1 See note at end of case.

NOTE. Machinery and other articles which are actually physically annexed to the realty become part of the freehold, Ridgeway Stove Co. v. Way, (Mass.) 6 N. E. Rep. 714; Schmitz v. Scheifele, (N. J.)1 Atl. Rep. 698, and note; Steers v. Daniel, 4 Fed. Rep. 597; Taylor v. Collins, (Wis.) 8 N. W. Rep. 22; Jenkins v. McCurdy, (Wis.) 4 N. W. Rep. 807; but remain chattels, if the mode of annexation indicates that it is merely to steady them for their more convenient use, and not to make them an adjunct of the building or soil, Carpenter v. Walker, (Mass.) 5 N. E. Rep. 160, and note. Where such annexation is intended, it is immaterial whether or not the removal would injure the freehold. Morrison v. Berry, (Mich.) 4 N. W. Rep. 731; or that it was not in fact permanently attached, Spruhen v. Stout, (Wis.) 9 N. W. Rep. 277.

They become realty if constructed or fitted with especial reference to the realty, and essential to its beneficial enjoyment for the purpose to which it is devoted. Stillman v. Flenniken, (Iowa,) 10 N. W. Rep. 842; Lipsky v. Borgman, (Wis.) 9 N. W. Rep. 158; Taylor v. Collins, (Wis.) 8 N. W. Rep. 22; Jenkins v. McCurdy. (Wis.) 4 N. W. Rep. 807; Lyle v. Palmer, (Mich.) 3 N. W. Rep. 921. Erections made by a tenant of leasehold premises, or by a licensee, for trade purposes, remain personal property if made of his own will, and for his own benefit, Walton v. Wray, (Iowa,) 6 N. W. Rep. 742; but not if made in fulfillment of a duty or obligation to the lessor or licenser, Deane v. Hutchinson, (N. J.) 2 Atl. Rep. 294. The parties may, by agreement or by their dealings, give to such articles the legal character of realty or personalty, at their option. Myrick v. Bill, (Dak.) 17 N. W. Rep. 268; Corcoran v. Webster, (Wis.) 6 N. W. Rep.513; Ferris v. Quimby, (Mich.) 2 N. W. Rep. 9.

For instances of boilers, and other heavy machinery and appurtenances, held not to be fixtures, see Mutual Life Ins. Co. v. Dowden, (N.J.) 3 Atl. Rep. 351; Wolford v. Baxter, (Minn.) 21 N. W. Rep. 744; Conrad v. Saginaw Min. Co., (Mich.) 20 N. W. Rep. 39; Ingersoll v. Barnes, (Mich.) 10 N. W. Rep. 127.

(103 N. Y. 480)

PEOPLE v. KNICKERBOCKER LIFE Ins. Co.

(Court of Appeals of New York. November 23, 1886.) LIFE INSURANCE-ISSUING NEW POLICY-TERMS OF-PROVISION FOR FORFEITURE.

Where the policy of following breaches of conditions by forfeiture is indicated in an original life insurance policy, the fair construction of the agreement contained therein, to give a new policy on the surrender of the original, subject to the annual payment of interest on outstanding notes, authorizes the insertion in the new policy of the usual provision of forfeiture on non-payment. Action on a life insurance policy.

The original policy contained a provision "that if, after the receipt by the company of two or more annual premiums, the policy should cease in consequence of the non-payment of premiums, the company, on the surrender of the same, will issue a new policy for the full value acquired under the old one, subject to any notes that may have been received on account of premiums; that is to say, if payments for two years have been made, it will issue a policy for two-tenths of the sum originally insured; if for three years, threetenths; and in the same proportion for any number of payments, without subjecting the assured to any subsequent charge, except the interest, annually, on all premium notes remaining unpaid on this policy.” The claimant albwed the policy to lapse after paying, partly in cash and partly in notes, six

*

annual premiums. Thereafter she surrendered it, and the company issued a new policy for six-tenths of the amount of the original policy, which contained a recital that it was issued in consideration of the surrender of the old policy, and of the representation made in the application therefor, and of the payment of interest annually, every twenty-second day of November, on all notes or credits given for premiums on the original policy. The outstanding notes or credits amounted to $1,620, and were charged against the policy. The new policy also contained this clause: "If the interest upon said notes or credits shall not be paid on or before the day or days above mentioned for the payment thereof, * * then, and in every such case, the company shall not be liable to pay the sum assured, or any part thereof, and said policy shall cease, and be null and void, without notice to any party or parties interested herein." The claimant paid interest on the notes for three years after the new policy was issued, until 1877, and then ceased to pay interest, and made no further payments. In 1882 the company became insolvent, and a receiver was appointed. It is claimed that the claimant had no actual knowledge that the new policy contained the clause of forfeiture above quoted, and that it was fraudulently inserted by the company. Judgment for defendants. Plaintiff appealed. John B. Green, for appellant. Leslie W. Russell, for respondent.

ANDREWS, J. The words “non-forfeiture policy” were conspicuously printed on the original policy. But a reference to the body of the policy shows that it was not intended to make the policy non-forfeitable except in a limited sense. The assured was not relieved from the obligation to pay the premium annually on the day specified. By the express terms of the contract an omission to pay the premium on the day it became due avoided the policy. But if, at the time of such omission, he had paid two or more premiums, the company bound itself to issue a new policy for as many tenths of the original insurance as there had been premiums paid. This was the only sense in which the original policy was non-forfeitable. The assured would not lose all benefits from premiums paid if the policy should become void by an omission to pay subsequent premiums. An omission to pay the premiums when due terminated the original contract, but the assured, if he had paid two or more premiums, would, on a surrender of the policy, be entitled to the substituted contract as provided. In case of a breach of any of the conditions of the policy other than the omission to pay the premiums when due, the assured was in no way protected against an absolute forfeiture of the policy.

It is claimed that the insertion in the new policy of the clause of forfeiture for non-payment of interest annually on the outstanding premium notes given for premiums on the old policy was unauthorized by the terms of the original policy. We think this claim is not well founded. The company did not undertake to give a new policy free from all conditions. It was expressly provided that the new policy should be “subject to any notes that may have been received on account of premiums.” The intention to impose upon the assured, in case a new policy should be issued, an obligation to pay the interest annually on premium notes outstanding, is clearly shown by the further provision in the original policy that the assured to whom a new policy should be issued, was not to be subjected “to any subsequent charge, except the interest annually on all premium notes remaining unpaid on this policy.” If the premiums had been paid in cash, no further payment would have been necessary. If paid in part in notes, only the annual interest thereon would be required to be paid, and the principal would remain a charge on the policy, to be settled on the final liquidation. It is true that the original policy did not provide for the insertion in the new policy of a clause of forfeiture for nonpayment of the interest. But it was made forfeitable on the non-payment of the premiums at the day, with a provision for a substituted contract, and it was also subject to forfeiture for breaches of other conditions. Causes of forfeiture were contemplated. The new contract was to be made subject to the payment, by the assured, of annual interest on the outstanding notes, and the right of the company to insert a clause of forfeiture as a means of enforcing this obligation, and of protecting the company against the accumulation of unpaid interest, was, we think, implied. The successful prosecution of the business of life insurance requires prompt payment by policy-holders of their obligations. “It is on this basis that they are enabled to offer assurance at the favorable rates they do. Forfeiture for non-payment is a necessary means of protecting companies from embarrassment.” BRADLEY, J., New York Life Ins. Co. v. Statham, 93 U. S. 30.

The policy of following breaches of conditions by forfeiture was indicated in the original policy, and the fair construction of the agreement to give a new policy, subject to the annual payment of interest on outstanding notes, authorized the insertion in the new policy of the usual provision of forfeiture on non-payment. We are of opinion that the new policy conformed to the agreement in the original policy, and it is therefore unnecessary to determine whether the claimant could be permitted, after having accepted the policy, and held it for years without objection, to now insist that the forfeiture clause was inserted without authority, and excuse himself on the ground that he did not know of its existence until after the insolvency of the company.

The cases of Cowles v. Continental Life Ins. Co., (decided by the supreme court of New Hampshire,) 2 East. Rep. 741, and of Bruce v. Same, 2 Atl. Rep. 710, (decided by the surpreme court of Vermont,) involved the construction of clauses in original policies dissimilar to those in question. The clauses considered in those cases, so far as the reports show, did not provide that the new policy should be subject to the payment by the assured of annual interest on the outstanding notes.

The order should be affirmed. (All concur.)

(103 N. Y. 680) LOCKWOOD, Sole Testamentary Trustee, etc., and others o. BRANTLY,

Adm'r, etc., and others.

(Court of Appeals of New York. November 23, 1886.) PLEDGE AND COLLATERAL SECURITY-CORPORATION STOCK-COLLECTION OF DIVIDENDS

TRANSFER-NOTICE-PRESUMPTIONS.

A testator was the owner, in his life-time, of six shares of stock in the Utica Cotton-mills, and on the fifteenth of May, 1861, he transferred them to B. as collateral security for a loan of $500 theretofore made to him, and which at that time, with the interest, was due and unpaid. For a time testator collected the dividends, and applied them to his own use. Afterwards B. assigned the stock to A.'s executor, and on the third of February, 1864, it was transferred to the executor on the books of the cotton-mills company, and a new certificate issued to him as assignee. The executor collected the dividends until February 1, 1865, and after that, until August, 1866, they were collected by G., a trustee under the testator's will, and paid over by B.'s direction to the widow and daughter of the testator. On the seventh of July, 1866, the executor, for value received, transferred the stock to B., who thereafter, until his death in March, 1882, held, claimed, and treated the stock as his own, and received the dividends thereon. The fact of this transfer and claim of ownership were known to all the parties interested, and especially to the executor and trustee, who were actors in the transaction. In a suit brought by the widow and some of the children of testator, after the death of B., against his administrator, to conipel the transfer of the stock to them, or to the executor or trustee, held (1) that, upon the facts, there is no equity in the claim of the plaintiffs; (2) that there is a presumption in favor of B.'s title arising from lapse of time.

Action to compel a transfer of certain shares of the capital stock of the Utica Cotton-mills. Judgment for defendants. Plaintiffs appealed. The facts are sufliciently stated in the opinion.

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