Thompson v. Vinton

Devens, J. When the new wheel, shaft and head gear were put into the mill, although they were to be paid for by F. E. Vinton and Purdy, who were then copartners, they must be considered as annexed by the mortgagor, Purdy. He was in actual occupation of the premises, and the only title which Vinton had therein was by virtue of his copartnership with him. This annexation was of such a character as to make these articles, as between mortgagor and mortgagee, a part of the freehold, and they were in great part a substitution for articles then removed. [143] It was not in the power of the mortgagor, by any agreement made at that time, or subsequently when he leased the property to Vinton, to bind the mortgagee to treat them as personalty. Hunt v. Bay State Iron Co. 97 Mass. 279, 283. The subsequent lease of the premises to Vinton by Purdy did not make him the lessee of the plaintiff, nor did Purdy’s agreement enable Vinton to remove these articles as those which a tenant might properly remove during his tenancy. If, in order that he should maintain these actions for the value of the property removed, it was necessary that the plaintiff should have been in possession when it was thus removed, he was so by his entry on August 5, 1873. Having recorded the certificate of such entry within thirty days, his possession commenced upon the date of the entry, and it was on August 25,1873, that the alleged trespass was committed. We have not thought it necessary to consider whether these two actions are brought for one and the same tort, and therefore whether both can be maintained. That question was not presented to us by counsel, nor apparently passed upon in the court below, and must be deemed to have been waived. Judgments on the verdicts.