¶1Terry, C. J., concurring.
¶2The material questions for consideration are: first, whether the machinery in controversy was so fixed to the real property as to pass by the sheriff’s deed; and, second, if so, whether upon its severance it became personal property so as to be recoverable in the present action.
¶3*264The general rule of law is, that whatever is once annexed to the freehold becomes parcel thereof, and passes with the conveyance of the estate. Though the rule has been in modern times greatly relaxed, as between landlord and tenant, in relation to things affixed for the purposes of trade and manufacture, and also in relation to articles put up for ornament or domestic use, it remains in full force as between vendor and vendee. As a general thing, as tenant may remove what he has added, when he can do so without injury to the estate, unless it-has become by its manner of addition an integral part of the original premises. (2 Kent, 348; 1 Parsons on Con., 431, and cases cited in note.) But not so a vendor; as against him all fixtures pass to his vendee, even though erected for the jmrposes of trade and manufacture, or for ornament or domestic use, unless specially reserved in the conveyance. Thus, potash kettles, appertaining to a building for manufacturing ashes, (Miller v. Plumb, 6 Cow., 665;) a cotton-gin, fixed in its place, (Bratton v. Clawson, 2 Strob., 478;) a steam-engine, to drive a bark-mill, (Oves v. Ogelsby, 7 Watts, 106;) kettles set in brick, in dyeing and print-works, (Dispatch Line of Packets v. Bellamy Company, 12 N. H., 207; Union Bank v. Emerson, 15 Mass., 159;) iron stoves fixed to the brick-work of chimneys, (Goddard v. Chase, 7 Mass., 432; )and wainscot-work, fixed and dormant tables, are hold to pass to the vendee under a conveyance of the land.
¶4In Elwes v. Maw, (3 East, 38,) Ellenborough says that questions respecting the right to fixtures, principally arise between three classes of persons: first, between the heir and executor; second, between the executors of tenants for life or in tail, and the remainderman and reversioner; and, third, between landlord and tenant; and observes that “as between heir and executor the rule obtains with the most rigor in favor of the inheritance, and against the right to disannex therefrom, and to consider as a personal chattel anything which has been affixed thereto;” and Mr. Justice Story, in Powell v. Monson and Brimfield Manufacturing Company, (3 Mason, 465,) after stating the general rule that whatever is once annexed to the freehold, becomes parcel thereof, and can not be afterwards severed but by him who is entitled to the inheritance, remarks, that “ as between heir and executor, the rule has never been relaxed, unless the case of the cider-mill, cited in Lawton v. Lawton, (3 Atk., 13,)is an exception, which may, perhaps, as the note there suggests, have turned upon a custom, or, as Lord Ellenborough, in Elwes v. Maw, (3 East, 38,) considers it, may be deemed a mixed case between enjoying the profits of land, and carrying on a species of trade.”
¶5The same strict rule which applies between heir and executor, applies equally between vendor and vendee, and between mortgagor and mortgagee. (2 Kent, 346; Day v. Perkins, 2 Sand. Ch., 364.)
¶6*265The engine and boilers, etc., severed from the mill, in the present case, were clearly fixtures within the definition of the term as given by the adjudged cases, and were covered by the mortgage, and passed to the plaintiffs with the deed of the sheriff. They were permanently fastened to the building, which had its foundation in the ground, and they could not be removed without injury to the premises. (Amos and Ferard, 2.)
¶7Pfeiffer possessed the right to the use and possession of the premises until the execution of the deed, but he possessed no right to despoil the property of its fixtures. The deed took effect by relation, at the date of the mortgage, and passed fixtures subsequently annexed by the mortgagor. (Winslow v. Mer. Ins. Co., 4 Met., 313.) By their wrongful severance, the fixtures became personal property, for the recovery of which the present action was properly brought. (Farrant v. Thompson, 5 Barn. & Ald., 826; Cresson v. Stout, 17 John., 116; Mooers v. Wait et al., 3 Wend., 108; Schermerhorn v. Buell, 4 Denio, 425; Morgan v. Varick, 8 Wend., 591.)
¶8It is true, the plaintiffs, had they been aware of the intention of Pfeiffer, might have applied to the Court, and obtained an injunction restraining the removal, under section two hundred and sixty-one of the Practice Act, but they were not restricted to this course. The remedy afforded by the section is only preventive ; it is not exclusive of any other remedy.
¶9The defendant Schleischer is the only appellant, and he admits in his answer that he was in possession of the specific articles recovered of him. The objection to the misjoinder of the defendant Pfeiffer should have been taken in the Court below; it can not be taken in this Court for the first time.
¶10Judgment affirmed.