Allen v. Mooney

130 Mass. 155, 1881 Mass. LEXIS 33

• Court: Massachusetts Supreme Judicial Court
• Decided: January 15, 1881
• Status: Published

Opinion

Lord, J.

It is the duty of an excepting party to show errai in the rulings to which exceptions are taken. In this case, no error is shown. The mortgagor of the house, while owning the equity of redemption, placed in it what is known as a portable furnace, with pipes and flues adapted to warm the house. A portable furnace may or may not be a part of the realty. Whether it is or is not may be matter of law, or of fact, or of mixed law and fact. In this case, nothing is reported for our consideration except the fact that the furnace is a portable one, set upon a brick foundation, commencing a foot in depth below the surface of the cellar. Four pipes extended from the furnace to the lower floor; and other pipes through closets to the upper part of the house, and registers were placed in the floor in the lower story, and in the floor and partitions in the upper part of the house. These are all the facts that are reported. Whether there were chimneys in the house, or fireplaces, or in what mode the registers were placed either in the floors or the partitions, does not appear. The furnace was placed in the house, and adapted for use by the owner; and it was certainly competent for the presiding justice to find that the owner of the building placed it there as a part of the realty. In the removal of this furnace, it is found that the defendants took it off the brick foundation, carried it away, and carried also “ the four pipes leading to the first floor, and the four registers, with the soapstone in which they were set, on the lower floor, leaving the foundation, the remaining pipes and registers, and everything else connected with the furnace, in the house.”

These facts were competent evidence for the judge to consider in determining whether the owner of the building had placed the furnace and apparatus connected with it in the house as furniture, or whether he had intended to make it, and had made it, a part of the realty. The case of Towne v. Fiske, 127 Mass. 125, relied upon by the defendant, is authority only to the extent that a portable furnace may or may not be a part of the realty; and Turner v. Wentworth, 119 Mass. 459, decides also that whether a furnace is or is not a part of the realty is a question of fact, or rather a mixed question of law and fact, dependent upon the intention and understanding of the party who devotes it to the use of the building, whether it shall be merely personal property, or whether it shall constitute a part of the building.

Whatever may be the test of personalty between landlord and tenant, as between grantor and grantee, or mortgagor and mortgagee, the test is certainly not whether the part claimed as personalty can be removed without injury to what remains. Perhaps it would not be easy — certainly there is no necessity — to state a test which would be certain in every case, because the purpose and intention of the owner of the estate is involved in the act. There was evidence which it was competent for the judge to consider in determining whether the furnace was a part of the realty. He has considered that evidence, has found it to be part of the realty; and, upon a bill of exceptions, we cannot revise his finding of the fact. ■

Exceptions overruled.