274 Mass. 386 | Mass. | 1931
The plaintiff is the holder of a mortgage dated December 17, 1928, and duly recorded, of the real •estate of one Berarde. The mortgagor engaged William E. Curtin to do the heating and plumbing work on a house to be constructed on the premises. Curtin purchased
In the fourth paragraph of the plaintiff’s bill it is alleged that the heating and plumbing equipment has been wrought into and attached to the real estate. The master found that all the allegations in the plaintiff’s bill, except the allegation in paragraph 5, “were admitted by the defendant, either in his answer or at the opening of the trial before me.” He also found that the plumbing and heating material could be removed without substantial injury to the building, that under the construction agreement of the mortgagor and mortgagee, if the mortgagor for seven successive days substantially ceased “to work upon the building such failure or neglect shall authorize the mortgagee ... to take immediate possession of the premises and proceed to complete the building with the right to use all material which may be found upon the premises ”; that acting under this provision the plaintiff took possession of the premises “ on or not later than April 10, 1929.” The master’s report was confirmed, a final decree was entered dismissing the plaintiff’s bill and restraining him from interfering with the defendant in the removal of the materials described in the conditional bill of sale agreement and delivered on the real estate in question, unless the plaintiff pays the defendant the sum of $975 and interest. The plaintiff appealed from the final decree.
The plumbing and heating appliances, although removable without substantial damage to the building, were wrought into and attached to the real estate. This was admitted by the defendant, according to the report of the
The defendant relies on G. L. c. 184, § 13, which provides that “No conditional sale of heating apparatus, plumbing goods, ranges or other articles of personal property, which are afterward wrought into or attached to real estate, whether they are fixtures at common law or not, shall be
There is nothing in the record to show that the mortgagee was not bound to make advances and we do not consider that the question of the rights of such mortgagee is before us.
We are of opinion that Stone v. Livingston, 222 Mass. 192, Henry N. Clark Co. v. Skelton, 208 Mass. 284, Carpenter v. Allen, 150 Mass. 281, are not in conflict. We have not thought it necessary to discuss the question argued by the plaintiff that the conditional sale agreement was not executed in the manner required by the statute.
The decree is to be reversed. A decree is to be entered restraining the defendant from removing the heating and plumbing equipment from the premises, with costs to the plaintiff.
Ordered accordingly.