REMOVING BUILDINGS DURING STAY OF EXECUTION. 461 



such assignee the vahic of all the fixtures, whether landlord's or tenant's 

 which were affixed to the premises before the execution of the mortgaoe 

 although there was a covenant in the original lease to the mortgao-or, 

 to yield up to the lessor, at the termination of the term, " all fixtures 

 and things to the premises, helonging to or to heJong.'" 



But it was decided in MacTcintosh v. Trotter, on the authority of 

 Minslmtl v. Lloijd, that a lessee even during his term cannot maintain 

 trover for fixtures attached to ths freehold, and not yet removed lij the 

 jmrchascr. And j'^er Parke B. : " The principle of law, as settled in 

 Minshall v. Lloyd is that whatsoever is planted in the soil belongs to 

 the soil — quicquid plantatiir solo, solo cedit — that the tenant has the 

 right to remove fixtures of this nature during his term, or during what 

 may, for this purpose, be coasidered as an excrescence of the term ; but 

 Ihey are not goods and chattels at all, but parcel of the freehold, and as 

 such not recoverable in trover." And even during the continuance of 

 the term a landlord may bring trover for machinery annexed to the 

 mill, and which was unlawfully severed from it {Farrant v. Thomjjson). 

 Trover also lies hy the tenant for fixtures ivhich the landlord has severed 

 from the freehold and distrained for rent {Dalton v. Whittem). And per 

 Parke B. : " By a conveyance, whether to a purchaser or to a mortgagee, 

 fixtures annexed to a freehold will pass, unless there be some words in 

 the deed to exclude them. Colegrave v. Dios Santos is an authority to 

 that effect in the case of a purchaser, and Longstaff v. Meacjoe in the 

 case of a mortgagee" {Hitchmcm v. Walton). 



The purchaser of lands, chc, having brought cm ejectment against the 

 tenant from year to year, the par ties enter iny into an agreement that judg- 

 ment shall he signed for the plaintiff, ivith a stay of execution till a given 

 period, the tenant cannot in the interval remove luildings, &c., from the 

 premises ivhich he himself had erected during his term, and before the 

 action was brought {Fitzherbcrt v. Shau-). This case was considered to 

 be completely in point in Heap v. Barton, where Penton v. Robart was 

 remarked on by Jcrvis C.J., who said, " There is a view of this case 

 which gets rid of the discrepancy between Penton v. Eobart and some of 

 the other cases. The tenants here disclaimed ; they became trespassers. 

 The Courts," added his lordship, " seem to have taken three separate 

 views of the rule— first, that fixtures go at the expiration of the term to 

 the landlord, unless the tenant has during the term exercised his ricrht 

 to remove them ; secondly, as in Penton v. Robart, that the tenant may 

 remove the fixtures notwithstanding the term has expired, if he remains 

 in possession of the premises ; and thirdly, that his right to remove 

 fixtures after his term has expired, is subject to this further qualifica- 

 tion, viz., that the tenant continues to hold the premises under a rioht 



