Indian chieftain. [volume] (Vinita, Indian Territory [Okla.]) 1882-1902, 1895-10-31

We term personal property. He
further states:
If these improvements. or farms. or gin
houses. or dwelling houses. or altogether are
personal property then in the case at bar we
have an anomalous state of AFFAIRS. The
debts are all paid and the residue is for dis
tribution. Part of the heirs (distributeesl
cannot take and hold the estate, part can.
so i'm order To distribute. the estate must be
sold and inasmuch none but citizens of
the Cherokee nation can buy, and inasmuch
as part of the distributes are Cherokees. the
value of the estate is exceedingly precarious.
He then proceeds to point out
the difficulties which present them
selves when the court shall under
take to distribute this estate on the
basis that these improvements are
personal property.
Numerous authorities were cited
by counsel for the administrative
in reference to the distribution of
estates and the distribution of per-
sonal and real property.
But we respectfully submit that
lut COuIl Is iOb HOh OOhli OhlON
with the difficulties TO which coun-
sci advert. The case at bar is one
of administration and has not yet
reached the point when orders for
distribution and final settlement
of the estate are to be made. The
question now before the court is
one of proper administration and
presents the question as to what
property the administrative in this
case shall schedule and account for
in her capacity as administrative.
Acting under the advice of her
counsel she has treated up to this
time all of the improvements
whether for agricultural or trade
purposes as part of the realty
and has only scheduled such per
sonal property as live stock stocks
of goods in stores and mo.eys due
the estate. The commissioner and
special master heretofore appoint
ed by this court ha. submitted an
able and elaborate report after au
exhaustive examination in which
he presents both the facts and his
conclusions as to the law of the
case. He has reached the conciu-
sion that the administrative should
schedule the value of the gin
houses and other improvements
used in the carrying on ofhis busi-
ness as a merchant but is of the
opinion that improvements for
purposes of agriculture are a part
Of the realty, but are not personal
property which she is required to
schedule or account for to this court.
The controlling question in the
case is as to whether any of the
improvements placed on the lands
occupied by the deceased at the
time OF his death are real estate or
personal property or what, if any,
of such improvements are person
al property.
What is real property;
In the English common law property is di-
vided into two classes, real and personal.
Real property is such as has the character
istic of immobility or permanency OF loca-
iton as lands and rights issuing out of
land. Personal property is every species of
property which does not have the above
mentiond characteristics.-Tiede on Real
Property. p.1.
All real property or things real are said to
be comprehended under the terms. lands"
tenements and herediaments. Land is the
soil of the earth and includes everything
erected upon its surface or which is buried
beneath-it.-Ib. p. ,.
At common law and generally: Under
the term land are included the buildings
made so under the doctrine of accession. and
the trees and other things growing
upon the land under the doctrine of acquisi-
tion by production. as well as the minerals
which may Oe imbedded in the earth."-lb.
Fixtures are those things. which. personal in
their nature. become realty 10y reason of
their annexation to the soil. such annexa-
tion being made by some one having an in
terest in the soil. They are removable or not
according to the circumstances of each case
-Ib p.3.
Where the person who erected the fix
lures has a permanent estate in the land
such as "A fee. the legal maxim 'Quidquid
plantatur solo. solo credit applies 10 the
fullest extent. qualified only by the rule that
the annexation must be of permanent
p. t.
All annexations of permanent character
pass with the realty respectively to the heir.
vendee and mortgagee and cannot be re-
moved by the executor. vendor OF mortga-
gor. This is the general rule. But between
landlord and tenant when question arises
as To fixtures placed on the land by the ten
ant a more liberal rule is followed. The ten
ant is permitted to remove a fixture which
falls within one of these classes even though
firmly fixed to the soil. one of the follow
ing classes. namely: Trade fixtures. agri-
cultural fixtures and fixtures for domestic
use and convenience. The tendency of the
law at the present day is to permit the ten
ant to remove all fixtures he may attach to
the soil which come under one of these clas-
ses and which can be removed without perm
anent injury TO the premises.-Ib. PIP. and :.
The clear tendency of modern authority
seems To give pre-eminence To the ques-
tion of intention to make the article perm
amcnt accession to the freehold. and other
tests seem to derive their chief value as evil
dence Of such intention. Ewell on Fixtures
%; Mcdonald ". Shepard. - Kansas. liz;
Eaves ". Estes. 10 Kansas. 3l4; Hinkkey &
Egcry Iron Co. ". Black. 20 Me-. Az; Morris
vs.. French. lO5 Mass. 326; Yates vs.. Mullen.
n Ind. 257; 10 L. Reps Annotated. p. -
Where il is the mutual intention of parties
that the title To building erected ON the
land of another shall remain i'm the builder
such building will be chattel. Mayor vs.
Newhon. N. J.. May -. 1s90D. Mere physical
annexation does not make the thing annex
cd a fixture; and the intention to annex
whether rightfully or wrongfully. is the
legal criterion. Vail vs. Weaver. 132 Pa. 363;
Hill vs.. Sewald. 50 Pa. 271; Seeger vs.. Petit,
"a Pa. 49,; Morris App. s. Pa. 3Gs.
\ building erected ON anOther's land by
permission and treated by all the owners Of
the building as well as the owner of the land
as personal property. is subject to sale and
mortgage as personal property. Brown vs.
Corbin. 121 Ind. Al.
The question whether fixtures erected for
the purposes OF trade are or are not removal