vendor and vendee, heir and executor, mortgagor and mortgagee, the strictest construction obtains.1

It is, however, essential that the tenant remove his fixtures without permanent injury to the freehold, and, unless he can do so, his right is lost. It cannot, perhaps, properly be admitted that the tenant has a right to remove his fixtures. It may more properly be said that the tenant has a privilege, rather than a right, to remove his fixtures; and he must exercise his privilege, if at all, before his interest expires. He cannot do it afterward, because the right to possess the land and fixtures, as part of the realty, immediately upon the termination of the lease reverts to the landlord.2

1 Tate v. Blackburn, 48 Miss. 1; Taylor's L. and T. Sec. 544; Pennybecker v. McDougall, 48 Cal. 160, in which it is held that a portable fence, made of posts and boards, and resting on the surface, is personal property.

"The legislature of this State cannot authorize parties who have placed improvements, which have become a part of the realty, on public lands of the United States, to remove the same after the lands have become private property." (Ibid.)

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'If buildings and fences, which are erected on public lands of the United States, are not attached to the soil, and are not a part of the realty, the United States has no interest in them, and they do not pass to a purchaser from the United States, and the person who constructed them has a right to remove them after a patent has issued to the purchaser." (Ibid.)

"A wooden building standing upon blocks and rollers, so that it could be removed without disturbing the freehold, and which was built for the purpose of removal, if necessary, may be regarded as a movable fixture and the personal property of the tenant." (Farrant v. Farrant, Sup. Ct. Dist. of Col. May, 1875.) "Whether fixtures are personalty or realty, is a question of intention, and not of physical annexation." (Seegar v. Pellitt, Sup. Ct. Term, Feb. 13th, 1875.) "Under the earlier decisions, physical annexation was undoubtedly the test; but this doctrine no longer prevails. The true rule to be deduced from the authorities is, that it is not the character of the physical connection with realty which constitutes the criterion of annexation, but it is the intention to annex. Where a tenant puts in fixtures or conveniences for his own comfort, the law raises no presumption that he intended them for permanent improvements to be left for the benefit of the landlord, and, as a general rule, he will be entitled to remove them during the term. For any injury to the freehold, by reason of such removal, he is, of course, liable to the landlord in damages. The matter of fixtures should be left to the jury as a question of intention; and to apply the law to certain facts of the case, and instruct the jury that if there was physical annexation the articles could not be removed, is error." (Ibid, citing Voorhies v. Freeman, 2 W. & S. 116.) "The criterion of a fixture, in a mansion-house or dwelling, is actual and permanent fastening to the freehold; but this is not the criterion of a fixture in a manufactory or a mill." (Walker v. Sherman, 20 Wend. 636; Farrar v. Stackpole, 6 Green, 157.)

2 Ibid, Sec. 551. "The law imposes no obligation on the landlord to pay the tenant for buildings erected by him on the demised premises. The rule that all

§ 309. Distinction against tenants under farming leases, in the matter of removal of fixtures.-The liberality and consideration to tenants, in permitting the removal of fixtures, appears to have been founded upon motives of public policy for the encouragement of science and the mechanic arts; but from a peculiar distinction against agricultural tenants, they have been, to a great extent, debarred from the privilege of removing their fixtures, which have been erected for agricultural purposes, though it is difficult to perceive why farming tenants, as to such fixtures, should stand upon a less favorable footing than mechanics as to trade fixtures, when the relative importance of the two arts is considered; and it is to be observed that the tendency, of late years, in America, has been to ignore such distinction.1

buildings become part of the freehold has been relaxed only so far as to give the tenant a right of removal while he remains in possession." (Rutter ". Smith, 2 Wall. 491.)

"In Chilley v. Church-wardens of West Ham. 32 L. T. (N. S.) 486, the Court of Queen's Bench considered the difficult question as to whether certain objects were fixtures, or mere chattels. It appeared that the premises of a distillery contained tanks which formed the roofs of rooms and houses, boiling backs and mash tuns, lying on brick piers against the walls which formed the floors of some of the rooms, and were connected by pipes to other houses; also, reservoirs, and other articles necessary for the process of distilling. They were all heavy, and either unattached, except by the communicating pipes, to the walls or piers, or were fastened by screws for the purpose of being steadied. Each was to be bought and sold as a separate article, and, if all were removed, the premises might be used for other manufacturing purposes. It was held that the articles were not fixtures, but chattels. When the article is attached to the land merely by its own weight, it is usually considered a mere chattel. (Wiltshear v. Cottrel, 1 E. & B. 674.) Still, if the intention is to make it a part of the land, it becomes a part of the land. (D'Eyncourt v. Gregory, L. R. 3 Eq. 382.) The true rule is expressed in Holland v. Hodgdon, L. R. 7 C. P. 328, a very elaborately considered case, where it is laid down that articles not otherwise attached to the land than by their own weight are not to be considered as part of the land, unless the circumstances are such as to show that they were intended to be part of the land, the onus, of showing that they were so intended, lying on those who assert that they have ceased to be chattels; and that, on the contrary, an article which is affixed to the land, even slightly, is to be considered as part of the land, unless the circumstances are such as to show that it was intended, all along, to continue a chattel, the onus lying on those who contend that it is a chattel." (Albany Law Journal, July 3d, 1875.)

The right of removal is determined by an entry for condition broken. (Whippley v. Dewey, 8 Cal. 86; Davis v. Eyton, Bing. 154.) Or by a judgment in ejectment. (Minshall v. Lloyd, 2 M. & W. 450; Penton . Robart, 2 East, 88.) 1 Taylor's L. and T. Sec. 548. "This privilege, however, has not been extended to the case of buildings, out-houses, etc., which have been erected for agricultural purposes; though it is difficult to perceive why such fixtures should stand

upon a less favorable footing than trade fixtures. The industry of the farmer will, of course, be more productive in proportion to the improved condition of his buildings, and his advantages for rearing stock and storing produce; and it seems but a narrow policy which refuses to the agricultural tenant the same protection that is extended to the improvement of the manufacturer."

The distinction is, however, maintained by the common-law authorities. (Elwes v. Mawe, 3 East, 38.) But, by English statute, (14 and 15 Vict. Chap. 25) the agricultural tenant is protected in his privilege to remove fixtures from leased land, where he can do so without permanent injury to the realty.

In the United States, the distinction still stands recognized, although innovations are constantly being made upon it. (Van Ness v. Packard, 2 Pet. 137; Whiting v. Brastow, 4 Pick. 310.)

§ 318.

Transactions, between parent and child, as to strangers.

§ 310. The duty of the father to support his child, while it is of tender years, necessarily results from the relation of the parties to each other and the demands of civilized society; the infant cannot support himself, and there can only be a question as to whether the State or his parents shall do this, for there is somewhat of a duty, both on the part of the commonwealth and of those to whom the child owes its existence, to guard and provide for its necessities through the period of infancy.1

The natural affections appear to decide the question, and give the desire to the parents to render to their child this service; but, as an abstract proposition, it is difficult to determine how far the law imposes on them the obligation to do so.

The rulings of the English Courts are generally adverse to considering the parent legally bound to support the child, although recognizing the moral one to do so; but the child is regarded as the father's agent, to the extent that he may bind him in procuring necessaries for his support, unless the father provide them.2

1 Parsons on Contracts, Vol. 1, Sec. 299; Kent's Com. Vol. 2, Sec. 189; Paley's Moral Philosophy, p. 233; Taylor's Elements of Civil Law, p. 385.

2 Simpson v. Robertson, 1 Esp. 17; Urmstone v. Newcomen, 4 A. & E. 899; Baker v. Keen, 2 Stark. 501; Fluck v. Tollemache, 1 C. & P. 5; Blackburn . Mackay, 1 C. & P. 1 (1823); Seaborne v. Moddy, 9 C. & P. 497 (1840); Mortimer

In the United States, the decisions are not uniform in character on this point, but the general tenor of them has been to establish the legal liability of the parent for necessaries furnished to the infant, on the ground that the moral obligation of the father to provide for his child's necessities is also a legal one, which the Courts may enforce.1

§ 311. The father must educate his children. It is the duty of the parent to educate his children, as it is to clothe and feed them; and as he must be the best judge of what is for them proper food and raiment, so upon him, to a great extent, must devolve the duty and responsibility of deciding what studies they shall pursue. He should be held to the performance of this duty, and to the expense of properly schooling the

v. Wright, 6 M. & W. 482, (1840) per Parke, B. "It is a clear principle of law, that a father is not under any legal liability to pay his son's debts."

And in Shelton v. Sprigett, 20 E. L. and E. 281, the law is declared to be well settled that, without some contract, express or implied, the father is not liable for necessaries furnished to his son.

1 Stanton v. Wilson, 3 Day, 37; In the Matter of Ryder v. Payne, 11 Payne, 187; McKnight v. Walsh, 23 N. J. Eq. 136; Buckley v. Howard, 35 Tex. 565. A father is bound to raise and educate his children at his own expense, and is not exonerated from this liability by the fact that his children have estates of their own, of which he is guardian, unless it appears that he is unable to do so.

Plaster . Plaster, 47 Ill. 290. Where the Court, in divorce, awarded the custody of the children to the mother, the father was heid bound to provide for the support and education of the children.

Hunt v. Thompson, 3 Scam. 180; Benson v. Remmington, 2 Mass. 113; Whipple v. Dow, Ibid, 415; Dawes v. Howard, 4 Ibid, 97. But this doctrine does not stand without contradiction.

See Gordon v. Potter, 17 Vt. 350, decided in 1845, per Redfield, J.: "It is obvious that the law makes no provision for strangers to furnish children with necessaries against the will of parents, even in extreme cases. For, if it can be done in extreme cases, it can be done in every case where the necessities exist." See, also, Raymond v. Lloyd, 10 Barb. 483; Chilcott v. Trimble, 13 Barb. 502, and Kelly v. Davis, 49 N. H. (1870) 187, in which it was held that a parent cannot be charged for necessaries furnished by a stranger to his minor child, except upon the promise of the parent, express or implied, to pay for them.

Such promise is not to be implied from an omission of duty, resting in moral obligation merely.

Parsons on Contracts, Vol. 1, Sec. 305. "The law can hardly be considered as positively settled, either in England or this country. But, resting not so much on direct and specific authorities as on the general character of American jurisprudence on this subject, we would state, as strongly prevailing rules here, that where goods are supplied to an infant which are not necessaries, the father's authority must be proved to make him liable; where they are necessaries, the father's authority is presumed, unless he supplies them himself, or is ready to supply them." (Ibid, Sec. 306, to the same effect.)

FARM-24.