Maples v. Millon

The question in this case is, whether trees and shrubs planted in a nursery garden for the temporary purpose of cultivation and growth until they should become sufficiently mature to be fit for market, and then intended to be taken up and sold, pass by a mortgage of the premises on which they are so planted, so that the mortgagor or his assignees can not remove them as personal chattels. As the question arises between the mortgagee and the assignee and creditors of the mortgagor, it is to be determined upon principles applicable to persons standing in the relation of mortgagor and mortgagee and not in the relation of landlord and tenant. As between landlord and tenant many things which pass under the general name of fixtures will, for the encouragement of trade, be permitted to be removed by the tenant during his term, which, as between heir and executor, vendor and vendee, or mortgagor and mortgagee, would be considered as parcel of the realty, aiid would therefore belong to the heir or vendee or mortgagee. And, as between landlord and tenant, it may be true of trees in a nursery garden, especially where land is let to a nursery gardener to be used for the purposes of his trade, that they would be treated as personal chattels, removable by the tenant during his term. But *600admitting that this is so, it is an exception to the general rule. Trees and shrubs are generally as much a part of the realty as the soil itself, whether growing upon it naturally, or planted and cultivated by the hand of man. It is therefore incumbent upon' the party claiming that they are personal chattels, which do not pass with the transfer of the land, to show that such was not the intention of the parties. How is this attempted to be done in this case ? We have nothing but the simple circumstance that Millón the mortgagor was a nursery gardener, and that the trees and shrubs in question were his stock in trade. This, as we have intimated, might be important if the question arose between landlord and tenant, but its importance here we do not perceive. He owned the land on which he planted the trees. By placing them there for cultivation and growth they became prima facie parcel of the land itself. If he had sold and conveyed the land instead of mortgaging it, they would have passed to his vendee unless specially excepted out of the conveyance. This would be so even if it be admitted that they partake to some extent of the nature of emblements, since it is a general rule that where an estate is determined by the act of the tenant the emblements shall go to the owner of the soil. If this is so as between vendor and purchaser, then the only question is whether the same rule applies as between the mortgagor and mortgagee; and we are satisfied that it does. We can discover no reason for construing an absolute conveyance any differently from a mortgage, so far as the interest intended to be conveyed by them is concerned; and we are referred to no authority which sustains any such principle. On the contrary the authorities cited by the counsel for the respondents show that the current of decisions is the other way. And why should it not be so ? The mortgagor must be presumed to have intended that every thing which passes by his deed should stand pledged for the security of his debt, and as he made no exceptions to the general words of the deed he must also be taken to have intended that every thing annexed to the realty, so as to become a part of it, should be held by the mortgagee, provided the debt was not paid.

*601We are therefore of opinion, that there is no error in the decree complained of.

In this opinion the other judges concurred.