274 Mass. 389 | Mass. | 1931
This is a bill in equity wherein the plaintiff, a mortgagee, alleges that the defendant without right removed from a building a heater or furnace and certain of its connecting parts, and asks that the defendant be ordered to restore the same to the building, and for damages.
The record contains no report of evidence but the trial judge made the following findings of fact: “The defendant sold to one Bruno under a written contract of conditional sale, certain heating apparatus consisting of a hot air furnace, registers and equipment incidental thereto, hereinafter called, for the purpose of brevity, ' apparatus.’ This apparatus was installed by the defendant in premises owned, at the time of said installation, by Bruno, which premises consisted of land with a dwelling-house thereon, numbered 181-183 Florence Street in the city of Brockton. No notice of the conditional sale, as provided in G. L. c. 184, § 13, was recorded. Bruno defaulted in certain payments due under
G. L. c. 184, § 13, applies only to articles of personal property within the classification therein mentioned which are afterwards “ wrought into or attached to real estate.” The record discloses no finding that the heating apparatus was wrought into or annexed to the realty, unless that can be inferred from the finding that the apparatus was installed in the premises of the owner. But, if it be assumed that the latter finding carries with it the implication that some part of the apparatus was annexed to the realty, we cannot say that the conclusion reached by the trial judge was wrong. The conditional sale agreement was valid between the purchaser and the defendant. The purchaser defaulted in payment and requested the defendant to remove the apparatus and it was removed before the mortgage to the plaintiff was
In Waverley Co-operative Bank v. Haner, 273 Mass. 477, the court held that the rights of the seller under a duly recorded conditional contract of sale of heating apparatus intended to remain permanently in a building and wrought into and attached to it were subordinate to those of the holder of a valid mortgage of the real estate executed and recorded before the recording of the notice of conditional contract of sale. The plaintiff has sought in its brief to establish an equitable right in its favor because of its reliance in making the loan upon the fact that the heating apparatus was then in the premises, but there is nothing in the record to justify the statement that the plaintiff was so' influenced. We do not intend to intimate that its rights would be different upon the facts found if it had also appeared that the presence of the heating plant was one of the facts taken into consideration by the plaintiff in making the loan.
Decree affirmed with costs.