Blethen v. Towle

Goodenow, J. This is an action of trover, to recover damages for the alleged conversion of four stoves, one cupboard, one cistern, one door bell, three sets of fire brasses and one door knob, in July, 1853. The plaintiff proved [313] that in June, 1853, he leased the house, in which the above named articles had been placed and used, to one Amsden, who paid rent therefor; and that in the same month the defendant took down the cistern in the front part of the house, and put it in the L part. It appeared in evidence that the defendant occupied the same house, prior to the occupation of it by the plaintiff, as his tenant. The deposition of Josiah C. Towle was put into the case by the defendant. From this deposition, with the evidence as to occupation by the parties, wo are authorized to infer that a levy was made upon this house or a part of it, by the plaintiff, as the property of the defendant, sometime previous to June, 1853. And the main question for our decision is, whether the articles above named became the property of the plaintiff by virtue of said levy. As to the three sets of fire brasses, the door knob and door bell, we do not find sufficient evidence to justify us in coming to the conclusion, that they were converted by the defendant to his use. As to the stoves, one was owned by a boarder, and did not become the property of the plaintiff by the levy; two of the other stoves were not standing in their places for warming the rooms, at the time of the levy, but had been taken down and stowed away for the summer. We are of opinion that they should be regarded as personal property, belonging to the defendant. The other stove was standing in its place. The fireplace had been closed up by bricks, and the pipe went through a thimble. The witness Towle says, “I don’t recollect whether the fireplace was bricked up in 1849, at the time of the levy, but it was bricked up at the time we left the house, about a year and a half after the levy.” We are of opinion that this stove should be regarded as a part of the real estate, and by the levy became the property of the plaintiff, and that he is entitled to recover the value of the same in this action. We are of opinion that the cistern, as described, was a part of the realty, and became the property of the plaintiff [314] by the levy, and that the cupboard was personal estate, and remained the property of the defendant. Upon the whole evidence', we are of opinion that a default should be entered, and that the plaintiff should have judgment for nine dollars damages and legal costs.