Bliss v. Whitney

91 Mass. 114 | Mass. | 1864

Gray, J.

Fixtures annexed to real estate become part of it. If annexed by the owner of land, they pass with it by a sale or mortgage from him, or by a levy of execution for his debt; and if he dies intestate, seised of the land and fixtures, they go to the heir as against the executor. If annexed by a tenant for purposes of trade, or some other immediate or temporary uses, or for ornament, he may indeed, while remaining in possession, sever them from the land, and thus change their character back again from realty to personalty; but if, without having done so, he voluntarily quits the premises at the expiration of his term, without any special agreement with his landlord, neither he nor. his vendee can afterwards claim them against the owner of the land. Goddard v. Chase, 7 Mass. 432. Gaffield v. Hapgood, 17 Pick. 192. Noble v. Bosworth, 19 Pick. 314. Winslow v. Merchants’ Ins. Co. 4 Met. 310, 311. Shepard v. Spaulding, Ib. 416. Butler v. Page, 7 Met. 40. Wall v. Hinds, 4 Gray, 256.

The platform scales, to recover the value of which this action is brought, are shown by the bill of exceptions to have been set into the soil, and firmly attached to the building. The earth had been displaced, and a wall built around the excavation, to receive the platform. To remove the platform and scales would leave this excavation under and in front of the building, and deface the room to which the weighing apparatus was fastened. They were as much a part of the freehold as a furnace or fire frame, or dyer’s kettles, fixed in brick work, in the cases above cited.

It does not appear by the bill of exceptions whether Holmes & Hubbard, the plaintiff’s vendors, were the owners or the tenants of the building, nor by whom the scales were put in. But assuming (as most favorable to the plaintiff) that Holmes & Hubbard were tenants only, and had themselves put in the scales, the utmost right which they could exercise or transfer without their landlord’s assent, was to remove the scales during their occupation, and thus make them personal property. This not having been done, nor any deed of them executed in the form necessary to pass real estate before the land became the property of Lane, the fixtures passed with the land to Lane, and his subsequent conveyance to the defendant gave him a perfect title to the scales as against the plaintiff.

Exceptions sustained.