264 TREES AND EQUIPMENT AS FIXTURES 



Trees which have been planted in a nursery by the own 

 of the land are a part of the land and pass when the land is 

 conveyed by a deed or mortgage, 1 and they would doubt- 

 less descend to the heir and could not be taken by the ex- 

 ecutor or administrator. However, a mortgagor of land 

 may sell such trees for transplanting in the regular course 

 of business 'as long as he has the right to redeem the land. 2 



It has been held that a chattel mortgage on unsevered 

 nursery stock which was not clearly in condition for trans- 

 planting at the time of the mortgage, would not prevail 

 against a prior mortgage of the land; 3 but other cases have 

 indicated that through agreements between the owner and 

 the tenant of the land as to the right of removal, nursery 

 stock, attached to the land, may nevertheless be person- 

 alty. 4 . 



172; Rule as to Fixtures Dependent upon Relation- 

 ship between Parties. "The rule of quicquid plantatur 

 solo, solo cedit, is applied with greater vigor in favor of the 

 inheritance as between executor and heir than in the rela- 

 tions of landlord and tenant, and tenant for life, or in tail, 

 and remainderman or reversioner. It is equally well settled, 

 that in the absence of evidence of specific intention varying 

 the rights of the parties, the same strict rule whiqh prevails 

 between heir and executor, prevails also between the grantor 

 and grantee, and mortgagor and mortgagee of the land." 6 

 "Between a grantor and grantee and mortgagor and mort- 

 gagee the effort of a court is always to ascertain the intent 

 of the parties, and to give it effect. If their language 

 affords evidence that a chattel was intended to pass, it will 

 of course pass, whether it be a mere chattel or one wlr'ch by 

 annexation has become part of the realty. But where no 

 specific intention is collectible, or where the conveyance is 

 of land by metes and bounds, and on the land a building 



1. Dubois v. Bowles 30 Colo. 44, 69 Pac. 1067; Maples v. MiUon 31 Conn. 598; 



Smith v. Price 39 111. 28. 89 Am. Dec. 284; Adams v. Beadle 47 Iowa 439, 29 

 Am. Rep. 487; Hamilton v. Austin 36 Hun. (N. Y.) 138 (1885), 43 Supr. Ct.; 

 See 23 Cent. Dig. tit. Fixtures. Sec. 34. 49. 



2. Adams v. Beadle 47 Iowa 439, 29 Am. Rep. 487 (1877) ; Price v. Brayton 19 Iowa 



309; Miller v. Baker 1 Mete. (Mass.) 27 (1840) 3 Law Rep. 148. 



3. Adams v. Beadle 47 Iowa 439. 



4. Wallace v. Dodd, 136 Cal. 210 (1902); Adams v. St. Louis Etc. Ry. Co. 138 Mo. 



242, 250 (1897); Liu Kong v. Keahialoa. 8 Hawaii 511 (1892). See Ewell's 

 Fixtures, 2 Ed. Callaghan & Co., Chicago, (1905). p. 79 (x53) p. 99 (x64). 



5. Ibid. p. 378. 



