Maguire v. Park

Field, J. The plaintiff is the assignee in insolvency of Lawrence B. Norris, and claims title under a mortgage of the machinery as personal property, given on September 18, 1875. The defendant claims title to the machinery under a mortgage of the land and building given on June 1, 1871. The engine, boiler, shafting, and a part of the machinery, were put in the building by the mortgagor before making this mortgage, and a part of the machinery was subsequently put in by Norris, who was the third mortgagee of the land and building, and took possession under and foreclosed his mortgage on June 22, 1877. The defendant took possession on April 30, 1883, having purchased the land and building at a sale under the power of sale contained in the mortgage of June 1, 1871. The question is whether the machinery was so affixed to the building that it became real property, as between mortgagee and mortgagor. The description, in the auditor’s report, of the machinery, and of the manner in which it was affixed to the building, is somewhat brief, and it is plain that all the facts are not before us that were brought before the auditor, as his view of the premises would be evidence before him. There are no questions of law raised in his report, and the auditor found for the plaintiff. It is not found for what purposes the building was erected, or to what uses it was by its construction adapted, or that the removal of the machinery would in any way injure the building, or impair its value for any of the uses to which it was suited. All of the machines appear to [27] have been separately constructed, and fit for use in any building in which they could be placed; and were secured in position by bolts, screws, nails, or cleats, and could be removed without injury to themselves or the building. The engine, boiler, and necessary shafting, are not included in the writ, and were not replevied. It has been said, that “ the object, the effect and the mode of annexation are all to be considered in determining whether any specific articles are removable fixtures.” Leonard v. Stickney, 131 Mass. 541. In Allen v. Mooney, 130 Mass. 155, it was held that a portable furnace set in a house upon brick foundations might or might not be a part of the realty, “ 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; ” and that, as a question of mixed law and fact, the finding of the judge, who tried the case without a jury, could not be revised by this court, if there was competent evidence to support it. It does not appear in the present case that the machinery could not be removed, and other machinery of a different kind put in, and the building be used as beneficially for the new business as for the old. It does not appear that the machinery was put into the building “ to carry out the obvious purpose for which it was erected, or permanently to increase its value for occupation.” McConnell v. Blood, 123 Mass. 47. There is great difficulty in determining, as matter of law, upon an agreed statement of facts, whether articles of the kind here described have or have not become a part of the realty, particularly when all the facts which would be competent upon the question are not contained in the agreed statement. The indications afforded by the mode of annexing a machine to a building, and by the use made of it, must clearly show an intention of permanently making it a part of the building, to enable the court, from these facts alone, to declare that, as matter of law, it is a part of the realty in cases where the machine is portable, complete in itself, and can be used elsewhere as well as in the building, and can be removed without injury to itself or to the building. If this case had been submitted to the Superior Court upon the auditor’s report alone, without making it an agreed statement [28] of facts, it would certainly have been competent for that court to have affirmed the finding of the auditor in favor of the plaintiff. It is not entirely clear what the effect is of the parties submitting the case to that court upon the auditor’s report as an agreed statement of facts, as the auditor has found that the plaintiff is entitled to the property, if that is a finding upon a mixed question of law and fact. However that may be, we are inclined to think that the case falls within the principles of the decision of Hubbell v. East Cambridge Savings Bank, 132 Mass. 447; and that the judgment must be Affirmed.