290 Mass. 510 | Mass. | 1935
This is a suit in equity in which the plaintiff seeks to obtain possession of certain property alleged to belong to him, or to recover damages therefor. The property in question is situated in a certain building, in Boston, which at one time had been occupied as a shoe factory and was equipped with shafting for the operating of machines in the conduct of the business, and with a blower system used in connection therewith. On August 1, 1928, the owners of the property executed a mortgage of it to the defendant bank (herein referred to as the defendant) in the sum of $50,000. Thereafter the defendant foreclosed its mortgage, and it was sold to one Meikle, who on June 2, 1932, conveyed it to the defendant which held the property until November 4, 1932. On that date the defendant conveyed the property to the defendant Kennedy who gave a first mortgage to the defendant and a second mortgage to the defendant Hope. The master to whom the case was referred found that Kennedy and Hope paid no consideration for the deed and mortgage held by them respectively, and whatever title either acquired was held in trust for the benefit of the defendant; and that the defendant was and remained the real owner of the premises.
The master further found as follows: The articles that are the subject of this litigation were installed in the building by a shoe company, former tenants, and on April 2, 1932, certain of the articles, which were assumed to be personal property, were owned by trustees in bankruptcy of the shoe company. One Montrose was in charge of the property with authority to sell the machinery and chattels belonging to the trustees, but not to sell the blower system and certain other property as he had been told by one
The plaintiff filed objections to the master’s report, including the finding that “the blower system was not included in the sale.” Thereafter the case was heard by a judge of the Superior Court who found and ruled that the blower system was “not a fixture and was intended to be and was included in the sale to the complainant.” An interlocutory decree confirming the master’s report as modified was entered, and a final decree in favor of the
We are of opinion that, in view of the master’s finding that it would be possible to remove the blower system without substantial injury to the building, it was properly found to be personal property. It does not appear that this blower system had been especially designed for use in this particular building; it was equally adapted for use elsewhere. The case is governed in principle by Carpenter v. Walker, 140 Mass. 416, Hopewell Mills v. Taunton Savings Bank, 150 Mass. 519, 522, Stone v. Livingston, 222 Mass. 192, 195, Nickels v. Scholl, 228 Mass. 205, 210, and Grinnell Co. Inc. v. Gardner Trust Co. 288 Mass. 385, 388.
The interlocutory and final decrees should be affirmed. Carchidi v. Kalayjian, 264 Mass. 230.
Ordered accordingly.