Page:Harvard Law Review Volume 12.djvu/590

570 S70 HARVARD LAW REVIEW. Property — Boundariks — Houses. — The grantor described a boundary line as " commencing twelve and one-half feet east of said house." Held, that in absence of evidence to show a contrary intention the distance is to be measured from the founda- tion of the house. Kefidall v. Green, 42 Atl. Rep. 178 (N. H.). The court treats the question as one of fact, purely, and seeks the intention of th& parties, taking judicial notice of the " uniformly recognized practice of men to measure boundary lines on the giound." That both the treatment of the question and the result reached are correct can hardly admit of a doubt. Centre St. Church v. Machias Hotel Co., 51 Me. 413. In an early case the opposite view was taken, the court appar- ently thinking that whenever a building is described as a base of measurement the edge of the eaves is the line of demarcation. Millelt v. Fowle, 62 Mass. 150. When a house is described as itself the boundary, or when it is conveyed, the line is established by the edge of the eaves, but it is clear that these cases rest on grounds of their own, and do not warrant the laying down of a general rule of construction. Property — Fixtures. — One V, in possession of land under a contract to pur- chase from the plaintiff, allowed the defendant to erect thereon a small building, agreeing that it should be regarded as personalty and removable at defendant's will. The contract for the purchase of the land was rescinded. Held, that the defendant may remove the building, although as between the jjlaintiff and V it had become part of the realty. Brannon v. Vaughan, 48 S. W. Rep. 909 (Ark.). The question which is here presented, has often been raised between a chattel mortgagee and the mortgagee of the land, when the chattel has been annexed to the freehold subsequently to the execution of the real estate mortgage. The authorities are very much in conflict whether or not a special agreement between the chattel mort- gagor and mortgagee will prevent the chattel from becoming subject to the mortgage of the realty. Cf. in accord with principal case, Tifft v. Horton, 53 N. Y. 380; Crippen V. Morrison, 13 Mich. 23. Contra, Bass Foundry v. Gallentine, 99 Ind. 525; Hunt v. Bay State Iron Co., 97 Mass. 279. The principal case has adopted the juster view. No good reason is apparent for depriving the defendant of his security in order to bestow upon the plaintiff an advantage which he has not bargained for or in any way relied upon. Cf. Davenport v. Shants, 43 Vt. 546. Property — Fixtures — Conditional Sale. — In a contract for sale of chattels intended to be annexed to the soil, it was stipulated that the title should not pass until the price was fully paid. The chattels were annexed, but the price was not paid as agreed. Held, that the seller may assert his title as against a subsequent mortgagee of the land for value and without notice. W. T. Adams Machine Co. v. Interstate Building (S^• Loan Assn., 24 So. Rep. 857 (Ala.). There is a direct conflict of authority on this point. Some jurisdictions hold, in accord with the present case, that such an agreement in a sale of chattels preserves their character as personalty, and that the subsequent mortgagee gets no interest in them although they are annexed to the realty. Ford v. CoM, 20 N. Y. 344 ; Warren V. Liddell, no Ala. 232. Another view is that even though the chattels under such an agreement are annexed to the freehold after the mortgage of the realty, the mort- gagee gets a title to them paramount to that of the original vendor. Clary v. Owen, 15 Gray, 522. The better doctrine would seem to be, however, that the mortgagee of the realty in such case should be allowed to hold all fixtures which would naturally pass as incident to the realty, and upon consideration of which he, in good faith, advanced his money; but that the original vendor should be allowed to prevail where the chattels were annexed after the mortgage of the realty, or where the mortgagee did not advance his money on faith of their passing under the mortgage. Davenport V. Shants, 43 Vt. 546. Property — Gifts Mortis Causa — Delivery. — A wife, on her deathbed, directed her husband to deliver all her property to her nephew. Held, that this was a valid gift mortis causa of personal property then in possession of the husband, and constituted him trustee for the nephew. Caylor v. Caylor's Estate,. 52 N. E. Rep. 465 (Ind.). The general rule is that delivery is essential to every valid gift of chattels. It is settled, however, in the case of gifts inter vivos, that possession in the donee at the time of the gift is not a fatal objection, and, in accord with the principal case, some jurisdictions extend the doctrine to gifts mortis causa. Sontherland v. Souther- land, 5 Bush, 591. The authority, nevertheless, is decidedly the other way. Drew v. Hagerty, 81 Me. 231 ; Cutting v. Oilman, 41 N. H. 147; French v. Raymond, 39 Vt. 623. The latter cases argue that the general policy of the law is against gifts mortis causa, and that all rules regarding them should be strictly enforced. This seems a sufficient ground for requiring an actual delivery at the time of the gift. Delivery