 Mr. Chief Justice Alvey delivered the opinion of the Court: In the argument of the case in this court two main propositions have been presented and discussed. First, is a radiator of the character of those involved in this case, and under the circumstances here presented, a fixture that wall pass to a purchaser of the realty as part thereof, at a mortgage sale ? And,secondly, will a conditional sale of chattels, or an agreement for preserving the quality of personalty, as *593means of security for the payment of the price thereof, such as we have in this case, prevail as against a prior mortgagee of the realty, to which the personal articles have been attached ? 1. With respect to the first of these propositions, there would seem to be some diversity of opinion among the courts. Some very able courts have held that radiators, such as wé have in this case, bear the same relation to a building as gas fixtures, and that neither are fixtures in the sense that they form a part of the realty, and will pass therewith. This is the established doctrine of the courts of Pennsylvania, and of one or two other States. Bank v. North, 160 Penna. St. 303. In the case just mentioned, it was held that radiators and valves connecting with steam heating apparatus are not fixtures attached to the realty; that they are exactly analogous to gas fixtures and are severable from the real estate. But we shall not decide this case upon that abstract view. We prefer to rest our decision upon the second proposition that we have stated, namely, that relating to a conditional sale, or the effect of the agreement under which the radiators were placed in the buildings. 2. There would seem to be neither principle nor justice upon which the complainant could claim to have included in its deeds of trust or mortgages the radiators and valves that were subsequently supplied by the defendant under the contract of December 20,1897, and thus defeat its right to the property for which it has never been paid. As we have seen from the facts of the case, the radiators were not so attached to the building that their detachment or severance would in any way injure the building. There were no special fittings required, and their place may be supplied, without trouble, by similar articles obtained in the market. The law in such case as the present would seem to be plain and well established in the American courts; the cases only varying in the application of the general rule, according to *594the special circumstances of particular cases. The general rule deducible from the authorities is, that if, after the execution of a mortgage of the realty, chattels which belong to a third person, or upon which such third person has a chattel mortgage, or a lien, are affixed to the realty, his interest or lien does not thereby become subject to the prior mortgage, provided the chattels may be detached, notwithstanding the objection of the prior mortgagee, without injury to the freehold, so as to make it substantially less valuable than it would have been had the chattels never been attached thereto. This principle is fully supported in many well considered cases. One of the best considered cases upon the subject is that of Campbell v. Roddy, 44 N. J. Eq. 244, decided in the Court of Errors and Appeal of New Jersey. In that case, the question arose out of the circumstance that a mortgagor of real property, after making the mortgage, had annexed to the real estate certain chattels, the machinery for an iron foundry, in which a third person claimed to have an interest. On a bill filed to foreclose the mortgage, a contest arose as to the right of the mortgagee to have all the property applied primarily to the payment of his mortgage, regardless of the interest which any other person might have had. in the annexed property before it was annexed. The personal chattels that had been bargained for by the mortgagor and annexed to the mortgaged premises, had been in part paid for, but for the balance he gave certain promissory notes, each containing the following agreement: “It is further agreed that the title to the property for which this note is given shall remain in said Robert Campbell until this note is fully paid.” The Court of Errors and Appeal, upon review of the authorities and a full consideration of the case, denied the claim of the mortgagees of the realty. In speaking of the effect of annexing the chattels to the realty, the court said: “ But, as already observed, the real estate mortgagees in the *595present case held their lien before the attachment to the realty of the mortgaged chattels. It is true that by force of the annexation they would become subjected to the lien of the real estate mortgage, absolutely, unless the lien of the chattel mortgagee intervenes. Any property belonging to the mortgagor which he chooses to annex to the mortgaged premises becomes realty. But it is difficult to perceive any equitable ground upon which the property of another which the mortgagor annexes to the mortgaged premises should inure to the benefit of a prior mortgagee of the realty. The real estate mortgagee had no assurance at the time he took his mortgage that there would be any accession to the mortgaged property. He may have believed that there would be such an accession, but he obtained no right, by the terms of his mortgage, to a lien upon anything but the property as it was conditioned at the time of its execution. He could not compel the mortgagor to add anything to it. So long, therefore, as he is secured the full amount of the indemnity which he took, he has no ground of complaint. There is, therefore, no inequity towards the prior real estate mortgagee, and there is equity towards the mortgagee of the chattels, in protecting the lien of the latter to its full extent, so far as it will not diminish the original security of the former. As already remarked, the real estate mortgagee is entitled to any annexation made by the mortgagor of his own property, but is not entitled to the property of others. The property of the mortgagor in these chattels, when he made the annexation, was an equity of redemption. So far as this interest had a value, it became subjected to the lien of the prior real estate mortgagee, but the value of his interest was the value of the property subjected to the lien.” In the' case of Tifft v. Horton, 53 N. Y. 377, which is among the leading cases upon this subject, the owner of an elevator purchased from the plaintiff an engine and boiler to place therein, and to secure a part of the purchase money *596gave his promissory note, secured by a chattel mortgage upon the property wherein it was stipulated that the engine and boiler should be and remain personal property until the note was paid. They were placed upon a foundation outside of the elevator and a house was built over them. Upon these facts the court held that the engine and boiler continued personal property until the note was paid, as against a prior mortgagee of the realty. In the opinion of the court, delivered by Mr. Justice Folger, the subject is very fully and clearly discussed. The court said that it is well settled that chattels may be annexed to real estate and still retain their character as personal property. Of the various circumstances which may determine whether in any case this character is or is not retained, the intention with which they are annexed is one; and if the intention is, that they shall not by annexation become a part of the freehold, as a general rule they will not. The limitation to this is, where the subject or the mode of annexation is such, as that the attributes of personal property can not be predicated of the thing in controversy; as where the property could not be removed without practically destroying it, or where it or part of it is essential to the support of that to which it is attached. The court then proceeds to say: , “It may in this case be conceded, that if there were no fact in it but the placing upon the premises of the engine and boilers in the manner in which they were attached thereto, they would have become fixtures, and would pass as a part of the realty. But the agreement of the then owner of the land'and the plaintiff is express, that they should be 'and remain personal property until the notes given therefor were paid; and by the same agreement, power was given to the plaintiffs to enter upon the premises in certain contingencies, and to take and carry them away. While there is no doubt but that the intention of the owner *597of the land was that the engine and boilers should ultimately become a part of the realty, and be permanently affixed to it, this was subordinate to the prior intention expressed by the agreement. That fully shows her intention, and the intention of the plaintiffs, that the act of annexing them to the freehold should not change or take away the character of them as chattels, until the price of them had been fully paid. And as the parties may, by their agreement, expressing their intention so to do, preserve and continue the character of the chattels as personal property, there can be no doubt but that as between themselves, the agreement in this ca'se was fully sufficient to that end.” And the court concluded that the agreement was not only good and sufficient as between the parties thereto, but was good and effectual as against a prior mortgagee of the realty. The case of Warren y. Liddell, 110 Ala. 232, is a very direct authority upon this subject. In that case it was held, that where the vendee of personal property under a conditional sale, without perfecting his title thereto by pajunent of the amount due, attaches the property so purchased to land, which he had previously mortgaged, in such a way as to make it a part of the realty, but not in a manner to render it incapable of removal without detriment to the land, such annexation of the personalty to the land does not defeat or affect the rights of the conditional vendor. And in the case of Binkley v. Forkner, 117 Ind. 177, 184, it was declared by the court that “A prior mortgagee can not occupy the attitude of an innocent purchaser. The interests and rights of the holder of a chattel mortgage upon property which is annexed to real estate upon which there is an existing mortgage, must be determined by the practical application of equitable principles to the rights of the respective parties.” The same principle is laid down in the case of Bank v. Elmore, 52 Iowa, 541. *598The English doctrine upon this subject would appear to be in entire accord with the principle of the American cases to which we have referred. This is shown by the rule laid down in the case of Cumberland Union Banking Co. v. Maryport Hematite Iron Co. (1892), 1 Ch. 415, where it was held, that a stipulation that a machine should remain the property of the vendors until it was fully paid for was valid; and that, notwithstanding the inclusion in a mortgage deed of machinery to be after erected, the company could not confer on their mortgagees a better title to the machine than they had themselves. In this case it does not appear that the deeds of trust contained any provision with respect to after-acquired property. But even if they had contained any such provision, it would have been without effect as to the radiators in question until payment made therefor. This is very clearly shown by the Supreme Oourt, in United States v. New Orleans RR. Co., 12 Wall. 362, 364. In that case, the court, by Mr. Justice Bradley, in disposing of a contention that after-acquired property was subject to a mortgage, said: “This, we apprehend, is an erroneous view of the doctrine by which after-acquired property is made to serve the uses of a mortgage. That doctrine is intended to subserve the purposes of justice, and not injustice. Such an application of it as is sought by the appellants would often'result in gross injustice. A mortgage intended to cover after-acquired property can only attach itself to such property in the condition in which it comes into the mortgagor’s hands. If that property is already subject to mortgages or other liens, the general mortgage does not displace them, though they may be junior to it in point of time. It only attaches to such interest- as the mortgagor acquires; and if he purchase property and gives a mortgage for the purchase money, the deed which he receives and the mortgage which he gives are regarded as one transaction, and no general lien *599impending over him, whether in the shape of a general mortgage, or judgment, or recognizance, can displace such mortgage for purchase money. This general rule, however, may be said to be subject to the exception, that when the property purchased is annexed to a subject already covered by the general mortgage, and becomes a part thereof, as in the case of iron rails which are purchased and laid down, and thereby become a part of the railroad, the general mortgage will attach.” In deciding this case below, the learned justice seems to have rested his opinion mainly, if not exclusively, upon the case of Porter v. Pittsburg Steel Co., 122 U. S. 267; and that case has been strongly pressed as an authority by counsel for the appellee here. But we fail to perceive wherein that case has any controlling application to this. In that case railroad bridges were the subject-matter of controversy; and the court, in its opinion, said that “the bridges became a part of the permanent structure of the railroad, as much so as the rails laid upon the bridges or upon the railroad outside of the bridges.” The bridges, therefore, were not sever-able from the railroad without destruction of those parts of the railroad, and necessarily impairing the entire structure. The case is in no respects in conflict with the principle of the cases that we have cited. Bridges and rails necessarily become actual parts of the permanent structure of a railroad and are inseparable from it without destruction of the road itself. But in the present case no such condition of things exists. The radiators are severable without injury to the buildings, and it was contemplated, and expressly stipulated, by the parties when they were placed in the buildings, that they might be removed in the event of default in the payment of their price to the owner. The case of Porter v. Steel Co., supra, has been the subject of examination in several recent cases, and the courts have all distinguished it in the same way, and shown that it is *600not at all at variance from the general principle maintained by the authorities upon which we have relied. This is notably so in the case of Holly Mfg. Co. v. New Chester Water Co., 48 Fed. Rep. 879, 888, and in the case of the General Electric Company v. Transit Equipment Company, 42 Atl. Rep. 101, 107; and also in the case of Warren v. Liddell, 110 Ala. 232,246, a case to which we have before referred. All these cases maintain the doctrine that it is competent to parties to agree that articles of personal property shall retain their quality of personalty until paid for, notwithstanding they may be annexed to a building on the land of the vendee, subject to the right of removal by the vendor; and that this right of the vendor of the personal articles may be enforced as against a prior mortgagee of the land and the building or structure in which .the articles were placed; provided such articles of personal property may be detached without material injury to the building or freehold. In the opinion of this court there was error in the order or decree of the court below from which the appeal was taken, and it must therefore be reversed. The order will be reversed and the cause remanded, that the bill may be dismissed; and it is so ordered. Order reversed and cause remanded. 
Alvey
J. L. Mott Iron Works v. Middle States Loan, Building & Construction Co.
THE J. L. MOTT IRON WORKS v. THE MIDDLE STATES LOAN, BUILDING AND CONSTRUCTION COMPANY OF HAGERSTOWN, MARYLAND
<p>Hearing on an appeal by tbe defendant from a decree of tbe Supreme Court of tbe District of Columbia in a suit for an injunction.</p> <p>The Court in its opinion stated tbe case as follows:</p> <p>The bill in this case was filed by tbe Middle-States Loan, Building and Construction Company, of Hagerstown, Mary-land, to obtain an injunction to restrain the J. L. Mott Iron Works, a corporation of the State of New York, from removing certain radiators and valves from the building or premises known as 410-420 Eleventh street northeast, in tbe City of Washington. After answer filed and testimony taken, tbe case was brought to hearing, and tbe court below made an order perpetually enjoining and prohibiting tbe defendant from removing or interfering with said radiators ; and from that order the defendant has appealed.</p> <p>The facts of the case, such as are material to tbe questions on this appeal, as shown by pleading and proof, appear to be the following:</p> <p>In 1897, Daniel H. Kent, was tbe owner of certain real estate known as lots 58-63, in square 962, in tbe city of Washington; and with a design of improving the property, in January of that year, be borrowed of tbe. Middle States Loan, Building and Construction Company, tbe sum of $21,000, and made a deed of trust of the property to trustees, as security for the payment of the money borrowed.</p> <p>With this money be commenced tbe erection of certain apartment houses or flats on the said lots; but finding the money so borrowed to be insufficient to the full completion of the buildings, he subsequently, that is to say, in the months of June, July, September and November of the year 1897, borrowed additional sums from the plaintiff, amounting in the aggregate to the sum of $14,000, which, together with the original loan of $21,000, made a sum total of $35,000. For these four additional loans, Kent also made deeds of trust of the property, and also of certain other property, as security for the payment of the money so borrowed. Each of the said deeds of trust contained provisions that in case of default in payment of the money secured within the time prescribed, the trustees named in the deeds, should, at the request of the plaintiff, advertise and sell the.property conveyed in trust, for cash, with the appurtenances thereunto belonging; and upon such sale, and full compliance with the terms thereof by the purchaser, the trustees should convey the property sold, without obligation on the part of the purchaser to see to the application of the purchase money.</p> <p>In December, 1897, the houses or flats erected by Kent were virtually completed, and a system of piping having been placed therein for purposes of heating, according to the plan of the buildings, Kent applied to the defendant, the J. L. Mott IronWorks, for a certain number of radiators and radiator-valves with which to furnish the buildings. Kent was not able to pay cash, and the defendant was not willing to furnish the articles without security. The negotiation between them led to the making of a written agreement for a conditional sale of the radiators, whereby the right of property was retained in the vendor until the purchase price was fully paid for the articles delivered. On December 14, 1897, the defendant, in reply to repeated applications of Kent in regard to the matter, said:</p> <p>“ Now, the only way we know of in order to help you out is to take security on the radiators themselves — that is to say, that we let you have the use of the radiators with the understanding that they remain our property until actually paid for within a time certain, which we wish you to state, and that we have the liberty and permission to remove them if not paid for in that time. We inclose you such a form as would have to be signed and acknowledged before a notary public by you as the owner of the property. . This is our New York form and holds good in this city and State, but, in order to ascertain whether it is also effective in the District we shall likewise send a similar form to our attorney, Mr. John A. Barthel, and inquire of him if it will hold there as well, and whether it would be received by the recorder for record.-</p> <p>“If he says it is all right, and if you are willing to enter into the contract and want to save time, you may go to his office, sign it there and acknowledge it — it wants to be done in duplicate, you to keep one and we to receive the other— and if entirely' lawful according to the laws of the District, we shall then ship you the radiators.”</p> <p>Kent assented to the proposition thus made, and on December 20, 1897, executed the following agreement, in the form of a letter, addressed to the defendant:</p> <p>“Washington, D. C., December 20, 1897. “The J. L. Mott Iron Works, New York.</p> <p>“Gentlemen: Please deliver at Nos. 410-420 Eleventh street, northeast, Washington, D. 0., 144 radiators, 144 steam radiator valves, and 144 N. P. Jenkins patent air valves, for which I agree to pay the sum of $825.40 within 60 days, or hereby give permission for their removal.</p> <p>“It is further understood and specifically agreed that the above goods, although placed in said building or buildings, shall be and remain personal property, and that the title thereto shall remain in the J. L. Mott Iron Works, until the same shall be fully paid for.</p> <p>(Signed) Daniel H. Kent.</p> <p>“Witness: J. A. Barthel.”</p> <p>This agreement was duly acknowledged before a notary public, and was recorded; though, as the articles were delivered to Kent in accordance with the agreement, the recording of the agreement was not essential to its validity, under the act of Congress of May 21, 1896, relating to bills of sale, conditional sales, mortgages, etc.</p> <p>It appears that between February, 1898, and the month of April, 1899, Kent became insane; but prior to the time of his becoming insane, the defendant made repeated demands for payment of the price of the radiators, but was always put off for one reason or another.</p> <p>Kent being insane, and being in default in the payment of interest on the notes given for the $35,000 borrowed of the complainant company,, in April, 1899, under the order of court, as it is alleged, the trustees were directed to offer for sale, under the deeds of trust, the property 410-420 Eleventh street; and the sale having been made and reported, was ratified and confirmed by the court, on May 8, 1899. At this sale the complainant became the purchaser of the propertj at and for the sum of $26,000, less than the whole amount of its principal debt by $9,000.</p> <p>It is averred in the answer and . shown in proof, that at the sale, and immediately after the auctioneer had announced the terms of sale, one of the trustees read aloud the paper writing that had been signed bj Kent, containing the agreement of conditional sale of the radiators by the defendant to Kent, and stated that purchasers would take subject to whatever rights the defendant, the J. L. Mott Iron .Works, had under that agreement. Immediately after the sale the defendant notified the complainant, the purchaser, that unless payment was made at once the radiators would be removed; and it was to prevent such removal that the bill was filed.</p> <p>There was considerable testimony taken to show the make and structure of the radiators, and how they were connected with the piping that had been previously placed in the buildings. The testimony of the witnesses, experts upon the subject, all concur in showing, with but slight variation, that these radiators are placed or set on the floor without being attached either to the floor or to the wall, or to any part of the building, and they are connected only with the piping by means of what is known in the trade as a union radiator valve, which valve is used either to admit or to shut off the steam from the radiator. These valves are connected to the piping by screw joints which can be readily unscrewed by using a common monkey wrench, and when thus unscrewed, and the radiators and their valves are removed, no part of the building, room, or space where the same may have stood will be damaged or injured in the least.</p> <p>It is shown by the witnesses that these radiators are made in sections or loops and put together with slip-nipples, so as to make any size of radiation ; that they are of stock size, and can be replaced by others identical in every respect; that if removed they could be used elsewhere ; that they are much more easily removed than chandeliers or gas fixtures, which are always fitted to the gas pipes with hot cement, whereas these radiators can be unscrewed in a few minutes with a monkey wrench; that the radiators are attached to the piping almost exactly as a gas meter is attached ; that many persons remove their radiators twice a year when their carpets are taken up and put down; that all the work is above the flooring, and that, when removed, no more trace is left than if a piece of furniture had been removed; that the radiators and valves do not go into the floor, but are screwed to the piping which projects out of the floor; that the Mott Iron Works had nothing to do with the piping and did not supply the boilers.</p> <p>Upon the pleadings and proof the court decreed against the removal of the radiators and held that they were fixtures, and were subject to the prior deeds of trust or mortgages, notwithstanding the express agreement that the title thereto should remain in the defendant until paid for, with right of removal in default of payment.</p>
<p>Fixtures ; Conditional Sales.</p> <p>i. Whether steam radiators not attached to the floors or walls or any part of the building in which they are used, but connected only with the piping by means of radiator valves screwed to the piping and readily detachable by a wrench without injury to the building, are to he regarded as fixtures which will pass with the realty upon a sale thereof, quaere.</p> <p>2. A conditional sale of such radiators whereby the vendor retains title thereto until they shall be paid for, will prevail as against a prior mortgage of the realty, so that upon a foreclosure sale of the realty under the mortgage, the radiators, if not paid for, will not pass to the purchaser, but the title thereto will remain in the vendor.</p>
D.C. Circuit
Court of Appeals for the D.C. Circuit