Page:Harvard Law Review Volume 8.djvu/71

NOTES. 55 result the importation of much of the English law of evidence, — a result which, by the way, has not followed from the introduction of the jury on the Continent. While the English law shows an occasional trace of Scotch influence, the reverse is very much more common and apparent, and one may look for further evidence of it in the future. Fixtures — Vendor v. Prior Mortgagee. — The Court of Appeal last month, in the case of Gough v. Wood 6r* Co., lo Times L. R. 318, decided that an agreement between the vendor of a fixture and a lessee that the fixture should remain the property of the vendor until wholly paid for, was a bar to the right of the mortgagee of the lease. The mortgage in this casp was executed before the annexation of the chattel, and neither the mortgagee had notice of the agreement nor the vendor of the mortgage. The court followed the decision of North, J., in /;/ le Maryport Hematite Iron Co. (1892), I Ch. 415, — a case precisely similar to this, except that the mortgage there included machinery, etc., " hereafter to be acquired." Weight was also put upon the case of Sanders v. Davis, L. R. 15 Q. B. D. 218, where the mortgage by a lessee of chattels annexed by him was held superior to a prior mortgage of the premises by the lessors. It is law both in England and this country that fixtures annexed by the mortgagor, whether before or after the mortgage, go to the mortgagee {IValms/ey v. Milne, 7 C. B. N. s. 115; McLaughlin v. Nash, 14 Allen, 136 ; Davenport V. Shants, 43 Vt. 546 ; Brennan v. Whitaker, 15 Ohio St. 446), and this rests upon the obviously good reason that a mortgagor, knowing the mortgagee's title in the property, may be said to have chosen to add to its value for his own purposes while in possession, and in view of his own equity of redemption. The case of real difficulty is the one where the mortgagee's interest is not harmed, and the annexation is after the mortgage by an ignorant vendor. It may be said that the ven- dor, although ignorant of the mortgage, has yet consented to make his property part of the soil, and so must be content to abide the conse- quences ; and there are cases in line with such a result, Clary v. Owen, 15 Gray, 522 (and compare the cases of partners taken in after the mortgage, Ex parte Cotton, 2 M. D. & D. 725 ; Cullwick v. Swindell, L. R. 3 Eq. 249). Or one may take the view of the present case, and give the vendor his property, allowing the privity between him and the mortgagor to overbalance his act of annexation, when that is in ignorance of the mort- gage. Davenport v. Shants, supra. The reasons given in the case un- der discussion, however, that the mortgagee may be assumed to have consented to the annexation, seem a little hard to reconcile with the law that forfeits to the mortgagor his own fixtures. If the mortgagee is to consent to a third party's putting fixtures on the land for the use of the mortgagor, why cannot he be said to consent to the mortgagor's putting his own upon it? The reason would seem to be better stated by the justice of the case, that the mortgagee is not hurt by the removal, and the innocent vendor's property is not lost to him. With the exception of the case of Davenport v. Shants, there does not seem to be any authority precisely in point, for it is submitted that In re Maryport Co., where the mortgage covered all to be acquired, goes further, and is really unfair to the mortgagee, whom the law wishes par- ticularly to protect, not putting him in the position of landlord to ten- ant ; while Sanders v. Davis, supra, also relied on by the Court, is really