Aldrich v. Husband

131 Mass. 480, 1881 Mass. LEXIS 299

Opinion

Gray, C. J.

The house having once been affixed to the freehold, and there being no evidence whatever of any previous or contemporaneous agreement that it should remain personal property, it became part of the realty, and could not afterwards be made a chattel by express parol agreement, and still less by an indefinite understanding. Gibbs v. Estey, 15 Gray, 587. Howard v. Fessenden, 14 Allen, 124. Morris v. French, 106 Mass. . Madigan v. McCarthy, 108 Mass. 376. Westgate v. Wixon, 128 Mass. 304. The respondent has therefore no title in the building as personal property.

Nor has she any special right in it as real estate, which can be asserted in this form of proceeding. In a petition under the statute, the manner of partition is to be determined by commissioners, and not by the court before issuing a warrant to them; and a respondent who has not denied the petitioner’s title in the land, nor held it under a title which he believed to be good, can have no allowance for improvements. Gen. Sts. c. 136, §§ 20, 46. Chandler v. Simmons, 105 Mass. 412. Whether, as the learned counsel for the respondent contends, she might obtain relief by bill in equity, is not before us.

Judgment for partition.