Westgate v. Wixon

Morton, J.

Upon the facts of this case, the Superior Court was justified in finding that the barn, for the removal of which *306 this suit was brought, was a part of the realty, and was therefore not attachable as the personal property of Abbott.

As a general rule, buildings are a part of the realty, and belong to the owner of the land on which they stand. Even if built by a person who has no interest in the land, they become a part of the realty, unless there is an agreement by the owner of the land, either express or implied from the relations of the parties, that they shall remain personal property. Webster v. Potter, 105 Mass. 414 , and cases cited. The facts of this case do not take it out of this general rule. There was no express agreement by the plaintiff that Abbott might remove the barn , and the relations of the parties were not such as that the law will imply such an agreement. Abbott was in the occupancy of the land under a bond, by which the plaintiff agreed to convey the land to him upon the performance of certain conditions stipulated therein. While he thus occupied, Abbott built the barn in question. The legal title to the land was in the plaintiff, but Abbott had an equitable.interest in it, a right to obtain a title to the soil upon performance of the conditions of the bond. He was not therefore a mere stranger, who erected a building upon land of another with the consent of the owner, in which case an agreement that he could remove it might more easily be implied. Nor can he be regarded as a tenant of the plaintiff, so that the liberal rules in regard to fixtures, which prevail between a lessor and lessee, can be applied. The essential features of a tenancy upon which those rules rest are wanting; he was not under any liability to pay rent, and he was not compelled to surrender the estate at a fixed time, as upon the expiration of the term; but, upon performing the conditions of the bond, all the additions and improvements made by him would enure to his own benefit. King v. Johnson, 7 Gray, 239 . The relations between Abbott and the plaintiff more nearly resemble those existing between mortgagor and mortgagee, in which case any additions made or fixtures annexed to the realty enure to the benefit of the mortgagee.

The barn in question was a substantial structure. It is clear from the facts agreed that Abbott built it, not for any temporary purpose, but for the permanent improvement of the land, which he expected to become his property according to the terms of *307 the bond. When built, it became a part of the realty, and enured to the benefit of the plaintiff as additional security for the performance of the conditions of the bond. Abbott had no right to remove it, and his creditors had no right to attach it as his personal property. Milton v. Colby, 5 Met. 78 . Eastman v. Foster, 8 Met. 19 . Murphy v. Marland, 8 Cush. 575 .

The defendant contends that the plaintiff cannot maintain his action in the present form, because at the time he removed the barn Abbott was in the occupancy of the premises.

To maintain an action of tort in the nature of traver or trespass de bonis asportatis, it is sufficient if the plaintiff proves a title to, and the right to the immediate possession of, the goods converted or carried away. Woodruff v. Halsey, 8 Pick. 333 . Ayer v. Bartlett, 9 Pick. 156 . Fairbank v. Phelps, 22 Pick. 535 . Codman v. Freeman, 3 Cush. 306 . In the case at bar, the bond does not contain any stipulation that Abbott, the obligee, is to enter into the present possession of the premises, and the facts agreed do not state how he came into the occupancy. But we assume, as fairly to be inferred, that he entered under the bond, by virtue of the license implied from its terms, and not by virtue of any independent license or title. This being so, his right to the possession ceased when there was a breach of the condition of the bond, and the plaintiff had an immediate right of possession. There had been a breach of the conditions before the defendant removed the barn. It follows that, at the time the defendant unlawfully removed the barn, the plaintiff was the owner of the land and barn, with the right of immediate possession. When the barn was severed from the realty, it ceased to be real estate and became personal. The plaintiff still remained the owner of it, entitled to the immediate possession, and could maintain an action of tort in the nature of trover, either against the person who unlawfully severed it, or any other person who, after it was severed, converted it to his own use. Riley v. Boston Water Power Co. 11 Cush. 11 . Phillips v. Bowers, 7 Gray, 21 .

Judgment affirmed.