Weston v. Weston

102 Mass. 514 | Mass. | 1869

Morton, J.

The parties having agreed that the auditor’s report is to be taken as an agreed statement of facts, we are to assume that all the facts found by the auditor are established. Upon these facts, four questions have been presented for the consideration of the court.

1. The auditor finds that there was a special agreement between the plaintiff and the defendant Gershom B. Weston, that said Gershom B. Weston should occupy the premises for the winter of 1865, and should pay rent therefor at the rate of $350 a year, payable quarterly ; and that there was no agreement between the parties as to what rent should be paid after that time. All the evidence upon this point is contained in certain letters between the parties, copies of which are annexed to the report; and we are unanimously of opinion that they do not show any agreement or contract that the rent should be less than the rate originally stipulated.

The tenant held over until the plaintiff was put in possession of the premises under the writ of restitution in this case. Under these circumstances, the law implies that the tenant held the premises upon the same terms as those on which they were originally leased to him. Dimock v. Van Bergen, 12 Allen, 551. Davis v. Alden, 2 Gray, 309. Bartholomew v. Chapin, 10 Met. 1. The plaintiff therefore is entitled to recover for rent at the rate of $350 a year from January 1,1865, to January 9,1867, when he received possession of the premises.

2. It appears that the defendant Gershom B. Weston formerly owned the premises, and conveyed them to the plaintiff prior to January 1, 1865. After the judgment for possession, and before the execution was issued, he removed and carried away a number of marble and imitation-marble slabs, which the plaintiff claims were fixtures and passed to him by the conveyance from said defendant. But, upon the facts reported by the auditor, we are of opinion that these slabs were not so annexed to the real estate as to become part of it. They were not attached to the wall, and could be removed without injury to the house or to themselves. They formed a part of the furniture of the rooms, useful and convenient, but not essential to the enjoyment and use of the house, and not permanently incorporated with the freehold so as to become a part of it. The plaintiff, therefore, cannot recover their value in this suit.

3. The defendant also removed a bell which in 1855 he had placed in the cupola of the barn upon the premises. The facts reported by the auditor present a case which perhaps is near the dividing line ; but we are of opinion that the bell was a fixture which the vendor could not lawfully remove. The mode in which it was attached, and its long use in connection with the barn, lead to the conclusion that it was intended to be, and was, permanently annexed to the barn, as an incident and appurtenance thereof.

4. The defendants object to certain items charged by the officer for his fees for serving the execution for possession. The officer, in his return, among other items, charges for “ cash for assistance, $23.90; extra time and trouble, $32.75; horse and carriage, $2.00.”

We can see no authority of law for the charges for assistance and for extra time and trouble. The statutes provide that the fees of an officer for serving a writ of seisin or possession in real actions shall be one dollar and ten cents. Gen. Sts. c. 157, § 4. They also provide that in cases not expressly provided for by law the fees for any official service shall be “ at the same rate as those prescribed in this chapter for like services.” Gen. Sts. c. 157, § 14. These provisions of the statutes limit the amount which the officer was entitled to charge in this case; and the items for assistance and for extra time and trouble are therefore disallowed.

The St. of 1864, c. 274, allows a small charge for the use of a horse and carriage in certain eases, but provides that “ no allowance shall be made under this act unless the officer shall certify that it was necessary for him to use a horse and carriage, and that he actually used such conveyance the distance set forth in his certificate.” The officer in this case has not made such certificate, and therefore his charge of two dollars for horse and carriage must be disallowed.

The fact that the plaintiff chose to pay these illegal fees give» him no right to recover them of the defendants.

Execution to issue according to the principles above stated.