EARL OF HALSBURY L.C. My Lords, in this case we have had a long and learned argument by the two learned counsel who have appeared for the appellants. I am not certain that I quite understand the conflict between the two propositions, or that I quite understand on what principle one is supposed to decide these cases apart from the facts of each particular case.
One principle, I think, has been established from the earliest period of the law down to the present time, namely, that if something has been made part of the house it must necessarily go to the heir, because the house goes to the heir and it is part of the house. That seems logical enough. Another principle appears to be equally clear, namely, that where it is something which, although it may be attached in some form or another (I will say a word in a moment about the degree of attachment) to the walls of the house, yet, having regard to the nature of the thing itself, and the purpose of its being placed there, is not intended to form part of the realty, but is only a mode of enjoyment of the thing while the person is temporarily there, and is there for the purpose of his or her enjoyment, then it is removable and goes to the executor.
My Lords, we have heard something about a suggested alteration of the law; but those two principles appear to have been established from the earliest times, and they are principles still in force. But the moment one comes to deal with the facts of each particular case, I quite agree that something has changed very much: I suspect it is not the law or any principle of law, but it is a change in the mode of life, the degree in which certain things have seemed susceptible of being put up as mere ornament, whereas at an earlier period the ruder constructions rendered it impossible sometimes to sever the thing which was put up from the realty. If that is true, it is manifest that you can lay down no rule which will in itself solve the question; you must apply yourself to the facts of each particular case; and I am content here to apply myself to the facts of this case. Here are tapestries which, it is admitted, are worth a great deal of money. I put the case: Suppose this had been a tenant from year to year, and she put up these things, is it conceivable that a person would for the purpose of a tenancy from year to year put up these things exactly in this way if thereby they made a present of 7000 l. to the landlord? That, I observe, startled Mr. Levett; he would not acquiesce in that; but in logic I am unable to sever the two sets of facts which I suggest. It is all very well to say that there is a difference between the cases of an heir and an executor on the one hand, and a landlord and a tenant on the other; but if you grant the proposition that it must depend upon the purpose of the annexation, and you must attend to the degree of the annexation, I am wholly unable to frame a hypothesis of a state of things in which these two principles will not decide the question, whether you are dealing with a landlord and tenant, or whether you are dealing with a tenant for life and a remainderman, or with people standing in any other relation to these things. In this case Madame de Falbe stood as tenant for life to the remainderman.
My Lords, we come then, in my view, to the determination of the question upon the principles I have pointed out, applying them to the particular facts of this case. What are they? Here we have objects of ornamentation of very great value. Undoubtedly their only function in life, if it may be so called, is the decoration of a room. Suppose the person had intended to remove them the next month or the next year or what not, I do not know, notwithstanding the ingenious effort that has been made by Mr. Levett, in what other way they could have been fastened than they were. We have seen the hard matchboard to which they were fastened in the first instance; then canvas was stretched on it, and the decoration of the wall as it originally stood was perfectly preserved except to the extent to which the nails were driven into the wall; they were necessarily driven into the wall, because otherwise the tapestry could not have been stretched out firm, as it was. I do not know any other mode by which the large one, for example, fourteen feet long, could have been placed there as it was. One has immediately before one's mind's eye cases of pictures of another sort, and after all, although this tapestry is very valuable, as I understand, and very beautiful, it is only a picture made in a particular form - it is a picture, whether woven or worked or what not, made for the purpose of ornamentation. When one looks at it and sees what it is, I should have thought, if ever there was an extreme case in which it would have been impossible to suppose that the person intended to dedicate it to the house, it was the case of these tapestries, which can be, and in fact have been, removed without anything but the most trifling disturbance of the material of the wall.
Under those circumstances I can entertain no doubt, now that we have had the whole case before us, that there is nothing which points to any intention to dedicate these tapestries to the house. There is nothing in the nature of the attachment which is necessarily permanent. My Lords, a number of words have been used, such as "only very slightly attached" and "not permanently attached." They really often assume the very question in debate. Looking at the piece of boarding on which the canvas was stretched and on which this tapestry went, I can hardly imagine how a piece of tapestry of that extent, fourteen feet long, stretched against a wall, could be more slightly attached than this was. Under those circumstances it appears to me that the thing is so easily susceptible of being removed, and has in fact been removed, without any damage or material injury to the structure of the wall, that to my mind, so far as it is dependent upon a question of fact, it never was intended to form part of the structure of this house; and that, after all, is what the meaning of "the benefit of the inheritance" comes to, though expressed in different words. It never was intended to remain a part of the house; the contrary is evident from the very nature of the attachment, the extent and degree of which was as slight as the nature of the thing attached would admit of. Therefore, I come to the conclusion that this thing, put up for ornamentation and for the enjoyment of the person while occupying the house, is not under such circumstances as these part of the house. That is the problem one has to solve in each of these cases. If it is not part of the house, it falls under the rule now laid down for some centuries, that it is a sort of ornamental fixture, and can be removed by whoever has the right to the chattel - whose it was when it was originally put up.
My Lords, for these reasons I am of opinion that this appeal must be dismissed with costs.
I only wish to say that I do not want to add to the confusion which is suggested to have been caused by differences of opinion among the learned judges below. My own view is that, going back for some centuries, the real differences of opinion, which apparently on the surface have been entertained by different judges, have not been at bottom differences in the law at all, but the facts have been regarded in different aspects according to the fashion of the times, the mode of ornamentation, and the mode in which houses were built, and the degree of attachment which from time to time became necessary or not according to the nature of the structure which was being dealt with. The principle appears to me to be the same to-day as it was in the early times, and the broad principle is that, unless it has become part of the house in any intelligible sense, it is not a thing which passes to the heir. I am of opinion that this tapestry has not become part of the house, and was never intended in any way to become part of the house; and I am, therefore, of opinion that this appeal ought to be dismissed with costs, and I move your Lordships accordingly.
LORD MACNAGHTEN .My Lords, I am quite of the same opinion.
It seems to me that the only question is, have these tapestries become part of the freehold? I think they were purely matter of ornament, and not part of the freehold at all. Mr. Levett has spoken of the Courts changing the law. I do not think the law has changed. The change I should say is rather in our habits and mode of life. The question is still as it always was, has the thing in controversy become parcel of the freehold? To determine that question you must have regard to all the circumstances of the particular case - to the taste and fashion of the day as well as to the position in regard to the freehold of the person who is supposed to have made that which was once a mere chattel part of the realty. The mode of annexation is only one of the circumstances of the case, and not always the most important - and its relative importance is probably not what it was in ruder or simpler times. I think the judgments in the Court of Appeal covered the whole ground.
LORD SHAND .My Lords, I am also of opinion that the decision by the Court of Appeal ought to be affirmed.
It may be true, as has been observed by my noble and learned friend on the Woolsack and by my noble and learned friend opposite (Lord Macnaghten), that there has been no change of the law; but I rather think that in the progress of time the law has been developed in the direction of holding what would at one time have been held to be parts of a building to be now temporary fixtures only, removable by the person who attached them to the building or his personal representative, and I think that this later view should be maintained.
It appears to me to be a sound principle, and to be the result of the later cases (whatever may have been the older law), that where a tenant for a time or a tenant for life has purchased tapestries or pictures and affixed them to the walls for the purposes of ornamentation, he is entitled to remove them, and his executor has the same right. That principle, as it seems to me, is decisive of this case.
My Lords, there has been an attempt to shew that there was here such a degree or character of annexation as to make these tapestries permanent additions to the house. I doubt whether there could have been such annexation by a tenant where the purpose of the annexation is ornamental. However firmly a tenant may put up such ornaments as pictures or tapestries upon the walls, I confess I think he is entitled to remove them, if during his tenancy he desires to do so, in order it may be to substitute others in their place, or to take them away altogether, and the same would be true at the end of his tenancy, at least where they are not built in, so as to be really parts of the permanent building. His position is that of a temporary occupant, having put up things for temporary purposes. He will be bound to take care that no damage occurs to the walls which he does not put right; but that is a different matter from an obligation to leave chattels which have not been built in as additions to the house, and which remain so when his tenancy ends.
Here, in fact, I think there was no permanent attachment, and I need not repeat what has been said by my noble and learned friend the Lord Chancellor as to the character of the attachments.
I entirely agree with the judgment of the Court of Appeal, and with the grounds upon which the learned judges unanimously proceeded in giving their judgment.
LORD BRAMPTON .My Lords, I am of the same opinion. I entirely agree with the exhaustive judgments in the Court of Appeal, and I agree also with all the observations the Lord Chancellor has made with respect to this case.
I confess I see no difficulty about the case myself, and I cannot see in the least how it can be said that these tapestries could ever have formed a portion of the house. It is not as if they had been pictures painted upon the walls of the house as a fresco that could not have been removed. There I can thoroughly understand that it could not be removed, because you could not remove it without removing part of the wall itself - in which case you would probably destroy the fresco and injure the house. But there is no sense in which these tapestries can be said to have been part of the house, nor do I see how any structural injury to the house could really be caused by their removal.
LORD ROBERTSON .My Lords, I also concur.
My view is completely represented by the judgment of Stirling L.J.
LORD LINDLEY .My Lords, I am entirely of the same opinion. I cannot bring myself to believe that Madame de Falbe when she put up these tapestries intended so to fix them as to make them part of the mansion for the benefit of the remainderman. They remained chattels from first to last.