of the mortgaged premises arising from any cause, and it is accordingly held that "fixtures feed the mortgage," by which is meant that engines, boilers, and other fixtures annexed to the premises, by the mortgagor, constitute a parcel of the mortgage security, and if their removal would be injurious to the mortgagee the mortgagor cannot remove the same. The mortgage has been held to cover not only annexations made by the mortgagor himself, subsequent to the mortgage, but also those by a tenant of the mortgagor; 3 but the strictness of this harsh doctrine, of late years, has been relaxed; the intention of the party making the annexation is regarded as the safest criterion, and if it was not the intention that the fixtures should be considered a part of the real estate, they will retain the character of personalty.4

1 Roberts v. The Dauphin Deposit Bank, 19 Pa. St. 71; s. c. 6 M. M. R. 54; Ewell Fixtures, pp. 280-281; Union Water Co. v. Murphy's Flat Fluming Co., 22 Cal. 631. But as to fixtures subsequently annexed, see Davenport v. Shants, 43 Vt. 546. Machinery erected by a licensee and incorporated in a mining plant does not become a part of the land and a mortgagee of same can hold such machinery as against a lien claimant. Springfield F. & M. Co. v. Cole, f30 Mo. 1.

Ewell Fixtures, p. 282; Voorhis v. Freeman, 2 Watts & S. (Pa.) 116. "Machinery, which is a constituent part of the manufactory to the purpose of which the building has been adapted, without which it would cease to be such manufactory, is part of the freehold, though it be not actually fastened to it; and this criterion has a place in questions between vendor and vendee, heir and executor, as well as debtor and execution-creditor, but not between tenant and landlord and remainder-man; ruled, therefore, that a mortgage and sale of a lot and iron rolling mill, with the buildings, apparatus, steam-engine, boilers and bellows attached to the same, passed the entire set of rolls used in the mills, whether actually in place or temporarily detached to make room for such as were; and that such rolls could not be seized and sold as chattels on fieri facias against the mortgagor." Voorhis v. Freeman, 2 Watts & S. (Pa.) 116; M. M. D. 106.

3 Gardner v. Finley, 19 Barb. 317; Frankland v. Moulton, 5 Wis. 1; Culwick v. Swindle, L. R. 3 Eq. 249; Preston v. Briggs, 16 Vt. 124; Trapper v. Harder, 3 Tynwh. 603. See Koch v. Richardson, 81 Mo. 221.

4 Ewell Fixt., p. 283; Eaves v. Estis, 10 Kan. 314; Yates v. Muller

While a mort

§ 281. Effect of subsequent lease. gagee would hold his security subject to a pre-existing lease of the premises,1 a subsequent lease would not bind the mortgagee,2 but upon an entry for breach of the condition of the mortgage, the mortgagee, at his election, could eject the tenant, as a trespasser, or recognize him as his tenant.3

§ 282. Deed intended for mortgage. —A deed, absolute on its face, if intended only as the security for a debt, may be shown to be a mortgage. A mortgage will result where there is an agreement to reconvey the title to the

23 Ind. 562; Cripper v. Morrison, 13 Mich. 35. "A steam engine set up for the benefit of a colliery by a tenant for life shall be considered as part of his personal estate, and go to the executor, for the increase of assets in favor of creditors." Lawton v. Lawton, 3 Atk. 13; M. M. D. 106. "Salt kettles were bought and mortgaged to the seller as personalty. They were imbedded in brick arches, but could be removed without injury to them, by displacing a considerable portion of the brick at inconsiderable expense, and the course of the manufacture required them to be thus removed, and be reset annually: Held, that they continued personalty as against a subsequent purchaser of the salt works, who had no notice of the facts, other than constructively from the filing of the chattel mortgage." Ford v. Cobb, 20 N. Y. 344; M. M. D. 106. "A., the owner of a quartz mill in Ainador County, executed a mortgage on the same to B. Afterwards, A. purchased at Sacramento a steam engine and boiler, and to secure the purchasemoney, executed to C. a chattel mortgage of the same, and then transported them to Amador, and placed them in the quartz mill, so that they became a part of the realty: Held, that C.'s mortgage on the steam engine and boiler had priority over the mortgage of B." Tibbetts v. Moore, 23 Cal. 208; M. M. D. 107. A stationary engine fastened with bolts to a pump house, passes under a mortgage of the mine as a fixture. Don v. Warner, 28 U. S. 202. But see, contra, Hewitt v. Watertown Steam Engine Co., 65 Ill. App. 153.

1 Logan v. Green, 4 Ired. Eq. 370.

2 Gartside v. Outley, 58 Ill. 210; 11 Amer. Rep. 59; 10 M. M. R. 566. 3 Gartside v. Outley, supra. A mortgagee is entitled to accounting from a lessee who holds under a subsequent lease. First Nat. Bank v. Min. Co., 89 Fed. Rep. 449.

4 Blackwell v. Overby, 6 Iredell's Eq. (N. C ), 38; s. c. 10 M. M. R. 531.

grantor, on payment of the debt; 1 where there is a deed and bond to reconvey; 2 where there is a deed with a defeasance clause, or where, by parol evidence, it can be shown that such a defeasance was to be annexed and the conveyance was to be a mere security for money borrowed.4 And while the rule obtains that parol evidence would not be admissible to prove a conflicting contemporaneous agreement that the deed was to be a mortgage,5 the court would permit proof of all the collateral facts and circumstances that would be incompatible with the idea of a purchase, and construe the instrument, according to the facts and circumstances, and the actua!, instead of the expressed, intention of the parties.7

1 Brophy Co. v. Brophy Co., 15 Nev. 101; 10 M. M. R. 601; Sharp v. Arnott, 10 M. M. R. 580.

2 Walker v. Tiffin Co., 10 M. M. R. 572; 2 Colo. 89.

3 Halsley v. Martin, 22 Cal. 645; s. c. 10 M. M. R. 549.

4 Blackwell v. Overby, supra. Any fact that will throw light upon the matters in issue is admissible in evidence, in such a controversy. cock v. Watson, 10 M. M. R. 540.

5 Blackwell v. Overby, 10 M. M. R. 531,

Han

€ Blackwell v. Overby, supra; Hancock v. Watson, 18 Cal. 138; 10 M. M. R. 546.

Hancock v. Watson, supra. "Tubbs conveyed to Walker his interest in certain mining property, and the next day Walker executed a title bond to Tubbs binding himself to reconvey after he took from the mine the amount of a certain note: Held, that the deed and bond together amounted to a mortgage, and that Walker as mortgagee in possession was bound to reconvey as soon as his debt was satisfied." Walker v. Tiffin M. Co., 2 Colorado, 89; M. M. D. 241. "Where a mining claim was sold by deed absolute, the purchaser at the same time making his agreement in writing to reconvey upon certain payments, and that the proceeds of the claim should be applied as payments under such agreement, after deducting interest and expenses: Held, that the original debt for which the deed was given was not extinguished, and that the contemporaneous instruments should be construed as a mortgage." Hickox v. Lowe, 10 Cal. 197; M. M. D. 241.

CHAPTER XIX.

AGENCY AS APPLIED TO MINING TRANSACTIONS.

SECTION 283. General principles of the doctrine.

284. Capacity of persons to become agents.

285. How agencies are created.

286. Declarations of agent

Competent, when.

§ 283. General principles of the doctrine. The law of agency permeates nearly all the different avenues of business life and is recognized as a very potent factor in the commercial world. It applies to all transactions where one acts through the person of another, and although the law concedes to every man the power to act through his agents to the same extent as he can act himself, it lays down the broad rule of liability, holding him responsible for the acts of his agents to the same extent as though he had acted for himself.1 But in order to hold the principal

1 Smith's Ld. Cas. 1659 et seq.; Eckert v. St. L. Transfer Co., 2 Mo. App. 36. And when the principal is disclosed, agent is not liable unless he specially agreed to be. Whitney v. Wyman, 101 U. S. 392.

for the acts of his agents it must appear: (1) That the principal was himself competent to make contracts and hence to employ an agent; (2) that the agent was competent to act as such; and, (3) that he was authorized to do the act for which the principal is to be held responsible.1

§ 284. Capacity of persons to become agents. The same degree of mental capacity is not required for one to become an agent that is necessary to be a principal. 2 There is hardly any legal restrictions upon the power to become an agent, and while in most States infants and aliens are incapacitated from making contracts for themselves, they can nevertheless act to the fullest extent as the agents of another. But if the disability were so great that the party could not understand the nature of the business he was to transact, he could not be a lawful agent; if this were the case, however, it would render the person wholly incompetent to attend to the business, and this is about the only limitation upon the capacity of persons to become agents.5

An agency may

§ 285. How agencies are created. be created either by express or implied authority or a

1 Smith Ld. Cas. 1753; Jolly v. Rees, 15 C. B. (N. s.) 628. And if the agent acts without authority he thereby renders himself liable. Sm. Ld. Cas. 1659; Longbottom v. Rogers, 2 M. & Gr. 427.

2 Governor v. Daily, 14 Ala. 469; Daniel Neg. Inst., § 272; Tiedeman Com. Pap., § 73.

3 Engman v. Immel, 59 Wis. 249. And see as to common law rule, Singleton v. Mann, 3 Mo. 464.

4 Smith Ld. Cas., p. 1756 et seq. But if the wife lives apart from husband she would have no implied power to bind him by her acts. Johnson v. Sumner, 3 H. & N. 261; 3 Sm. Ld. Cas. 1757.

5 Tiedeman Com. Pap., § 73; Daniel Neg. Inst., § 272. A lessee is not the agent of lessor, but has but a qualified property of his own. Wilkins v. Abell, 26 Colo. 462; 58 Pac. Rep. 612.