Houle v. Abramson

Braley, J. The plaintiff not having appealed from the interlocutory decree overruling the exceptions of both parties to the master’s report, the questions raised by his exceptions are not open on his appeal from the final decree dismissing the bill, except so far as the final decree may have been erroneously affected by the interlocutory decree. R. L. c. 159, § 26. Cawley v. Jean, 189 Mass. 220. The master, however, not having been ordered to report the evidence, his findings of facts should not be set [85] aside unless from- the report they appear to have been plainly wrong. The plaintiff, recognizing the rule, contends, that the master’s conclusions, that the articles in question were personal property, not having been warranted by his general findings, should be set aside, and relief decreed. It is unquestioned that, in pursuance of the written agreement of the parties, the deed of the defendant conveying the property to the plaintiff, the mortgage back to secure a part of the purchase price, and the lease by the plaintiff to the defendant of a portion of the premises, were executed and delivered simultaneously. The plaintiff derives ownership under the deed, and, as the articles claimed by the defendant to be her personal property are not specifically referred to in the deed, the plaintiff has no title unless they were fixtures and passed as part of the freehold. The principles of law applicable to the findings of the master have been so recently enunciated in Hook v. Bolton, 199 Mass. 244, and Smith v. Bay State Savings Bank, 202 Mass. 482, that any extended discussion is unnecessary. If as between grantor and grantee a question arises whether an article attached to, or put in place in a building on the granted premises, but which] is not specifically described or referred to, and passes in title, if at all, under a general description of “ a certain lot of land and buildings thereon ” is personal property not conveyed by the grantor, or a fixture annexed to the realty, the character, purpose, mode of annexation, and the intention of the owner, are all to be considered. The defendant asserted no title to the curved counter, the shelving, wall fixtures, and the electric wiring in the store, which the master found were fixtures. The marble slab forming the finished top of the curved counter, although not separately claimed by her, but by her husband, who has not been joined as a party, is disposed of as to her by his finding that it was a constituent part of the fixture. Leonard v. Stickney, 131 Mass. 541. The gas fixtures, three counters, and the oil pump, while found to have been personal property, are also stated to be the property of the husband, over which the defendant has never assumed control or asserted against the plaintiff any adverse rights. But the cabinet, or china closet, and the hot water heater he decided, upon consideration of all the evidence and his general findings, were her personal prop [86] erty. It is certain from, the recital of the circumstances, that these articles were provided for the more convenient use and enjoyment of that part of the building occupied by the defendant as a dwelling for herself and family, and it was a question of fact, whether they were supplied as removable furnishings, or were intended as a substantial and permanent addition to the premises. The defendant after the deed was delivered having continued in occupation under the lease as the plaintiff’s tenant, there was no occasion for a severance until the tenancy was terminated, and, as the covenant for redelivery of the premises referred only to the reversion, the tenant’s title to the personal property thereon at the beginning of the term remained unaffected. Holbrook v. Chamberlin, 116 Mass. 155, 162. We are, therefore, of opinion, that the decree should be affirmed with costs. Ordered accordingly.