Barnes v. Hosmer

82 N.E. 27, 196 Mass. 323, 1907 Mass. LEXIS 1095

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1907
• Status: Published

Opinion

B.TTGG, J.

It was agreed by the parties at the argument that the house, for the conversion of which this action is brought, stood upon land of the Woronoco Paper Company. Its title came by a chain of six deeds, which were in evidence as far back as 1881, no one of which contained any reservation, exception or mention of the building. It had stood about thirty years, but there was no evidence as to the circumstances under which it was constructed or placed, nor as to who was the owner of the land, nor whether it was done by the owner or a stranger to the title, and if by a stranger, what his relations were to the owner of the freehold, nor anything to show that at or near that time anybody treated it as personal property. A building once affixed to the real estate becomes a portion of it, unless before it is so affixed there is a written or oral agreement with the owner of the land that it shall remain personal property. Aldrich v. Husband, 131 Mass. 480. Gibbs v. Estey, 15 Gray, 587. Morris v. French, 106 Mass. 326. Madigan v. McCarthy, 108 Mass. 376. Hartwell v. Kelley, 117 Mass. 235.

Such an original agreement or understanding may be shown by inference from the subsequent recognition of rights, which can only result from its existence. Morris v. French, 106 Mass. 326, 327. Howard v. Fessenden, 14 Allen, 124. Korbe v. Barhour, 130 Mass. 255. There is no evidence warranting such an inference in this case. Attributing its utmost weight to the testimony, it goes no further than to show at most a subsequent paroi recognition of an undefined privilege existing in the person who-assumed to own the building. The evidence covers only the few years last past, and shows that the Woronocó Paper Company asserted the right to assent to any transfer of interest in the building in order to give such transfer any validity, and a recognition of this claim by most of the parties in interest. No conveyance of the building by the owner of the land was shown. When a building has become affixed to the realty, without any previous agreement that it should remain personal property, it cannot thereafter be converted, into personal property by any paroi agreement with the owner of the land without a severance. There was no evidence of any severance. Burk v. Hollis, 98 Mass. 55. Poor v. Oakman, 104 Mass. 309. Guernsey v. Wilson, 134 Mass. 482. Dudley v. Foote, 63 N. H. 57. Leonard v. Clough, 133 N. Y. 292. To give effect to any such oral agreement or any course of conduct indicating such a subsequent oral agreement would be in contravention of the statute of frauds. The instruction, therefore, that the jury must return a verdict for the defendant in the event that it was found that the Woronoco Paper Company owned the land was correct. Neither of the prayers for instructions presented by the plaintiff was in accordance with the principles of law we have stated, and they therefore were refused properly.

Exceptions overruled.