274 Mass. 419 | Mass. | 1931
The plaintiff appeals from a decree confirming the report and supplementary report of a master, and from a decree adjudging that certain machinery is personal property, title to which is in the defendant New England Road Machinery Company, and dismissing its bill as against that defendant with costs. The bill was brought against the machinery company, Anton B. Nelson, May R. Nelson, his wife, and Samuel Barron, Jr., trustee in bankruptcy of Anton B. Nelson, as defendants. It was filed May 17, 1929, and alleged, in substance, that Anton B. Nelson and Neis O. Nelson, copartners as Nelson Bros., and May R. Nelson conveyed in mortgage to the plaintiff on November 15, 1927, two parcels of land in Braintree, “ together with all fixtures and machinery located thereon and used in connection with the operation of the sand and gravel pit on parcel 2 above described that, on March 4, 1929, the plaintiff entered upon the premises and took possession of the property, foreclosed its mortgage by sale on May 14, 1929, and took title to itself by deed recorded May 21, 1929. It alleged that the defendant machinery company threatened to take possession of certain machinery described in the bill and to remove it, claiming to be the owner by virtue of written agreements and leases executed by Nelson Bros. This machinery, it alleged, was so affixed to the premises as to be part of the realty and no longer personal property. It further alleged that the machinery company had no right, title or interest in the machinery; and, by amendment, that it had been paid in full for any machinery which might be found to have remained as personal property. It set out that Neis 0. Nelson had died, and that Anton had been adjudicated bankrupt and the defendant Barron had been made his trustee. It prayed that the machinery company be restrained from interfering with or removing the machinery, and for general relief. All the defendants answered. The Nelsons disclaimed any interest in the personal property, and took no part in the hearing before the master. The machinery company set up that
The master found that the machinery had ■ been delivered by the machinery company to Nelson Bros, upon leases and conditional sales, title not to pass until all requirements of the leases and sales agreements had been met, the property not to be affixed to the realty nor to become real estate. A part had been delivered after the execution of the mortgage to the plaintiff, which had known nothing of the arrangements as to title of the machinery. Neis O. Nelson died before April 2/ 1929. Anton became surviving partner and on April 2, 1929, was adjudicated bankrupt. No bankruptcy proceedings by or against the firm had been instituted. Barron was made trustee for Anton B. Nelson and claimed rights in the property. The master found that the machinery had been so placed upon the premises that it could readily be removed without injury to the realty; that, in placing it, there had been no intent to make it part of the realty or thereby to enhance permanently the value of the real estate, and that it was at all times and had remained personal property. We need not recite the details of the methods used in the construction to make the machinery an integral part of the stone crushing and screening plant on the second parcel conveyed in mortgage. There is no error of law in the finding that the machinery has remained personal property. Hubbell v. East Cambridge Five Cents Savings Bank, 132 Mass. 447. Hopewell Mills v. Taunton Savings Bank, 150 Mass. 519. Stone v. Livingston, 222 Mass. 192.
Evidence in respect to the life of crushing and screening machinery, to the custom of moving such machinery about in a gravel pit and of removing it to other pits when one is exhausted, and to the custom of “ trading
The mortgage deed was duly recorded in the registry of deeds for Norfolk County, but no record was ever made to meet the requirements of G. L. c. 255, § 1, as amended by St. 1921, c. 233, with regard to mortgages of personal property. So far as personal property is concerned the conveyance to the plaintiff was effectual only between the parties.
The account between Nelson Bros, and the machinery company extended from September 23, 1924, to May 21, 1929. There was no special account in which debits and credits were entered with reference to any specific transaction of specific conditional sale agreement. Payments were entered on one side, charges on the other. There was no evidence of any request by Nelson Bros, that a particular payment be appropriated to any specific charge. The master was unable to determine what amount remained unpaid with reference to any particular piece of machinery or with reference to any particular transaction; but he found a balance of $5,453.19 remaining due, made up of balances due on all the machinery specified in the bill of complaint, with the repair parts furnished from time to time in connection with it, plus interest charges incidental to carrying notes and trade acceptances referred to in the leases and conditional sales agreements made in connection with deliveries of the machinery. Both leases and conditional sales agreements were made in connection with deliveries, the leases generally somewhat earlier in date than the conditional sales agreements with reference to the same items. The leases were retained by the seller. The conditional sales agreements were assigned as security for payment by the seller of notes or trade acceptances made or accepted by Nelson Bros, which it indorsed to the Merchants Discount Company or to the Congress Finance Corporation. Payments
We find no error. The evidence with regard to the books of the Congress Finance Corporation, and the balance due on the general account with Nelson Bros, was competent on the issue of tifie, and, in especial, on the issue of payment presented by the amendment filed before hearings began. All the exceptions to the report argued have been dealt with. They properly were overruled. The original possession of the plaintiff^ as between itself and the Nelsons was legal, see Hurnanen v. Nicksa, 228 Mass. 346, 350, and cases cited; but it gave no right against the vendor or its assigns, since no title to the machinery at any time passed to the Nelsons. The property never was attached to the realty so that it lost its character as personal property. The mortgage was never so recorded as to give it validity in respect to the personal property conveyed. Leahy v. George, 273 Mass. 130. The vendor before the bill was filed had repossessed itself of the right to take possession for breach of the terms of the leases as well as of the contracts of conditional sale. By retain
The bill was framed to restrain removal of the crushing and screening machinery. It did not seek redemption on an accounting. It has not been amended. Until possession is taken no absolute occasion for a bill to redeem exists. There has been no such possession. We do not think a decree for redemption, if obtainable in any event, is within the prayer for general relief of this bill now before us.
Decrees affirmed.