Moody v. Aiken

Citations

• 50 Tex. 65

Syllabus

<p>1. Fixtures.—Later authorities make the true test of a removable fixture to depend not so ranch on the mere fact of a connection with the realty as upon constructive annexation, the intention of the party in making the same, and the relation which the article bears to the freehold.</p> <p>2. Same.—When the article annexed is an accessory necessary to the enjoyment of the freehold, and was erected for the benefit of the inheritance and as an addition thereto, it becomes a fixture, which partakes so much of the realty that its ownership rests with the fee, and is not subject to removal, except by consent.</p> <p>3. Same. — But when erected for a temporary purpose, and with the agreement or intention that it shall not be a permanent annexation to the freehold, as for purposes of trade, it becomes a fixture removable against the will o£ the owner of the freehold, if effected at the proper time..</p> <p>4. Banker’s safe.—It seems that a banker’s safe, even if inclosed within a vault the walls of which would have to be partially taken down to effect its removal, is a removable fixture.</p> <p>5. Same—Sale of, by parol. — An agreement, on consideration, for sale of such safe is not within the statute of frauds.</p> <p>6. Same.—See facts held sufficient evidence of parol sale, estopping the owner of the freehold from asserting ownership as against such sale.</p> <p>7. Practice.—Suit may be brought for such fixture, without previous-demand and tender of expenses of such removal, where the defendant obtained possession without consent of the owner, and held it without lawful right, claiming to be the owner himself.</p>