The independent-reporter., 1909-12-16
4 BOOTED QUESTION.
Decision Given In Franklin Count,
Case.

The following decision has been
given on question often In doubt,
namely: Whether a mortgage deed
conveys right to storm doors and
windows belonging TO the mortgaged
house.
Sophia f. Roderick ys. Parker NJ.
Sanborn. Rescript. Spear. J.
This is an action of troyer TO re-
cover the value of certain outside
windows and outside doors. common
ly known as storm windows and
storm doors, alleged to have been
converted by the defendant. The
plaintiff claims them as her own per
sonal property and the defendant
claims that they passed to him by
virtue of a mortgage and final deed
to him from the plaintiff. The case
is reported upon the agreed state
ment in which 1t appears that the
plaintiffs husband purchased the
premises in question in 1904, and con-
veyed them to his wife in 1908, in
which sale the doors and windows
we're included but not mentioned In
The deed. The title to the real estate
s not further involved. That part
)f the agreed statement pertinent to
the issue is as follows:
Said Joseph A. and Sophia e. Rod
erick Immediately took possession of
the premises with the intention of
making it their home and lived there
IN until on or about October 8, 1903.
Said Joseph with the purpose of
making the place more comfortable
for use, procured the outside win
dows and doors to be made for the
house and specially fitted to it, the
doors and windows being prepared in
the usual manner for fastening to
the house by means of screws pass
ing through hinges on the doors and
into the frame of the door casing,
and by means of screws passing
through the double window-frames
and into the window castings of the
house. Each windowframe was fitted
to a particular window casing on the
building, and the window castings
were numbered consecutively from l
upwards, and the double windows
were numbered to correspond, so that
it might be readily determined to
which window casing each outside or
| double window was designed TO he
attached and used.
Said outside doors and windows
were attached by means of screws aS
aforesaid and used on the house dur
ing each winter that it was occupied
| by said Roderick, and up to October
8, 1903. In the spring of each year
they were removed and stored in the
stable on the premises where they
remained until attached to the house
| 10 uyiDfnr phon fh.Au would a
replaced IN their resi- ective p!a.es IN
the building until the following
spring"
II also appears that in February
1907, when the plaintiff mortgaged
the premises to the defendant. the
! doors and windows were then 3ctual-
ly attached to the house; and that in
October 1908, when the plaintiff
conveyed the premises to the defend
ant by warranty deed, the doors and
windows were then upon the premis-
es in the stable chamber.
The only question involved is
whether the windows and doors under
his statement of facts became part
of the realty so that the title vested
| in the defendant under his deed of
the premises or remained personal
property, the title to which did not
pass with the deed
Whatever the early understanding
it is we'll settled now that whether a
chattel has become a part of the
realty is a mixed question of law and
fact. In the case before us the facts
are admitted and from these facts is
to be inferred the legal character of
| these doors and windows. 1t is now
generally conceded that the old tests
of physical character of annexation
is discarded, and the modern trend of
authority is adverse to a1y arbitrary
or fixed rule by which 1t may be
determined whether a ehattel is or is
not q fixture. 1t is now, however,
| held that a chattel Is not merged in
the realty unless, in the language of
Hayford V. Wentworth, 81. Maine, 347,
| % it is physically annexed, at least
by juxtapositon to the realty or
/, some appurtenances thereof; (2) 1t ia
adapted to and usable with that part
of the realty to which it is annexed
and (3) it was annexed with the in
tention on the part of the person
making the annexation to make it a
permanent accession to the realty. See
also Cyc. 10. 1896. In order to meet
the first of these conditions it is not
necessary that the chattel should be
physically fastened to the realty at all
times. There may be constructive as
we'll as actual annexation.
To establish the requirements of the
second condition it is necessary to
show that the doors and windows
we're adapted to and used with that
part of the realty to which they were
annexed Discussion upon this pro-
position would be superfuous. The
agreed statement is conclusive. 1t
conceives that SAID Joseph with the
purpose of making the place more