Merrill v. Wyman

Daneorth, J. This is an action of trover in which the only question involved is the title to the elevator belting sued for. The plaintiffs claim it as personal property under a chattel mortgage from Jerome B. Draper duly recorded October 13, 1885. The [495] defendant claims title as administratrix under a real estate mortgage from the same Jerome B. Draper to Thomas J. Wyman, her intestate, dated November 19, 1883, which was duly recorded as a deed of real estate, but not as a mortgage of personal property. It therefore becomes a material question whether this belting was real estate or personal property. Upon this question we have but little pertinent testimony in the report of the case, except such as may be derived from the acts of the parties ; but that must be decisive if from them we can ascertain their intention upon this question. It seems that by deed of warranty dated November 19, 1883, the defendant’s intestate conveyed to Draper, the plaintiffs’ grantor, an unoccupied mill privilege described by metes and bounds. In the same deed in a distinct clause, he conveyed "the machinery and its appurtenances, of the grist mill, . with the rights to use said machinery in said mill for two years from this date free from rent.” This mill was not within the "metes and bounds” named in the deed, nor was it, except the two years use, conveyed by any description. At that time there was an elevator belt in the mill used in connection with the machinery, but whether as appurtenant to, or an independent part of it, does not appear; and perhaps it is immaterial for in either case it would pass by the deed. Subsequent to the deed this belting ivas removed, though left in the mill, and that in question, of greater value put in. On the same day and as a part of the same transaction the mortgage under which the defendant claims was given to secure the purchase money. From this transaction we have no doubt the parties intended to, and did make this machinery and its appurtenances, personal property, whatever it might have been before. It was not, as in Allen v. Woodard, 125 Mass. 400, included in the description as a part of the real estate. On the other hand it was described in a separate clause and the building in which it was situated and of which it must have been a fixture, if of any, was not sold, but referred to as descriptive, or an identification, of the machinery, thus making a complete separation between that and the building. The sale and transfer of the machinery ivas immediate [496] and complete. True, the use of the mill was transferred, but it was only the use for a limited time, and that rather as a lease of the building in which to operate the machinery for the purpose of profit; and not as in White v. Foster, 102 Mass. 375, as necessary to keep it in existence. The machinery was not, as growing trees, an inherent part of the land, or even of the building, though it might have been fixture, and thus a part of the real estate. But as such fixture it is easily distinguishable from the building, and separated from it by a description, as the building may be from the land and thus rendered personal property as is often done. It is therefore immaterial whether the mortgage under which the defendant claims, covered this belting, as it was not recorded as a chattel mortgage and it is conceded that the plaintiffs had no knowledge of its existence. In accordance with the provision in the report the entry must be. Judgment on the verdict. Peters, C. J., Walton, Virgin, Libbey and Foster, JJ., concurred.