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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 3, Page 197   View pdf image (33K)
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McKIM AND KENNEDY VS. MASON. 197
tract have made a law for themselves, and that is, that the
machinery and fixtures in the Powhatan factory shall consti-
tute a portion of the security of the mortgage, but that machi-
nery, though from its nature and the mode of its annexation a
fixture, and as such a part of the realty, does not pass by the
mortgage where it appears to have been made and affixed sub-
sequently to its execution.
The mortgage in this case certainly contains no stipulation
that improvements or additions to the premises, which are in
their nature fixtures shall not pass and be bound as a part of
the realty, and therefore the question is, what will be a rea-
sonable and legal construction of its provisions ? If the secu-
rity of the mortgagee ia limited to the extent to which the
argument would conduct us, it might, perhaps, be insisted, that
the new mill itself constituted no part of the security, but this,
of course, has not been pretended. In the. absence, then, of
an express stipulation, one way or the other, the inquiry is as
to the nature of the improvement. Has it become a part of
the realty or not ? If it has, it is to be considered as done by
way of permanent improvement for the general benefit of the
estate, and not for its temporary enjoyment, Hunt vs. Bunt,
14 Pick; 386. This is the rule, says Chief Justice Shaw, in
4 Metcalf, 312, "in regard to articles doubtful in their
nature," but as to additions which are not in their nature
equivocal, the deed must of course include them. "If," say
the Court, " such improvements consist in actual fixtures not
doubtful in their nature, they go, of course, to the benefit and
security of the mortgagee by increasing the value of the
pledge. The expectation of such improvement and such in-
creased value often enters into the consideration of parties in
estimating the value of the property to be bound, and its suffi-
ciency as security for the money advanced." And it may,
I think, be very reasonably supposed, that the mortgagees in
this case had an eye to such improvements and increased value
of the identical nature and character which have been made
Upon the property mortgaged. The amount stated to be due
from the mortgagor at the date of the mortgage was fifty-one
VOL. in.—14

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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 3, Page 197   View pdf image (33K)
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