Bainway v. Cobb

99 Mass. 457 | Mass. | 1868

Gray, J.

Upon the facts stated in the bill of exceptions, we are unanimously of opinion that the stone sink was annexed to and became part of the freehold of Hiram Cobb. This is shown by the purpose and the mode of placing it on the premises. In Park v. Baker, 7 Allen, 78, which is relied on to support the ruling of the court below, the ice chest held to be a chattel was not an article which necessarily or usually forms part of the fitting up of the house itself, and was expressly agreed to have never been in any way connected with or affixed to the building. But the sink in this case, if not absolutely necessary to the completeness of the dwelling-house, was not only by its construction and position obviously adapted and intended to be, as it after-wards was in fact, used daily for the ordinary domestic work; but it was fitted in a frame, and set closely in the corner and against the sides of the room, over a cistern of water; was so heavy as to require no other fastening to keep it in place ; and was originally connected by a pump with the cistern under it, and by a pipe, passing through the side of the house, with a stone drain to carry off the waste water. The removal of the pump and the pipe, without otherwise changing the position or the use of the sink, did not sever it from the freehold or make it personal property again.

If it had been annexed by a tenant for years, he might have disannexed and removed it during his term, and not afterwards but, subject to that right of removal, it would have been rea estate; and the law is more favorable to the heir as against the executor, both claiming under the same absolute owner of the estate, than to the landlord as against his tenant, who has paid for the occupation of the premises and himself put in the fixtures in question. Grymes v. Boweren, 6 Bing. 437, and 4 Moore & Payne, 143. Wall v. Hinds, 4 Gray, 256. Bliss v. Whitney, 9 Allen, 114. Kutter v. Smith, 2 Wallace, 491. Blethen v. Towle, 40 Maine, 310. Hays v. Doane, 3 Stockt. 84. This sink, having been annexed to the freehold by the owner of the fee, and not severed before his death, descended to his heirs as real estate, and did not devolve upon his administrator and next of kin as personal property. It was not therefore included in the household furniture given up by the other children to the daughter under whom the plaintiff claims, but continued to be real estate, to which she as one tenant in common could not make a good title as against the others, and which passed to the defendant by the deed from his coheirs. Exceptions sustained.