Shepard v. Spaulding , 45 Mass. 416 ( 1842 )

Shaw, C. J.

It is somewhat difficult to understand the facts of this case. The house which the plaintiff claims, as having attached the same as the personal property of Danolds, the builder, seems to be a dwellinghouse. If it was a perma nent dwellinghouse, built in the usual way, by a tenant for years, it would seem to be an essential part of the freehold, and could not be removed, even by a tenant, during or at the expiration of his term, under the liberal rules adopted in modem times in favor of tenants. But we presume from the circumstances, that it was a small wooden house, standing on blocks, capable of being removed. Supposing the tenant had a right to remove it during his term, the court are of opinion that he renounced his right to do so, by the surrender of his lease to the landlord, without reservation. This surrender, as we are to presume, was made for a valuable consideration.

Daniel Spaulding was the owner of the soil. He leased the mill and mill privilege, with a small tract of land, to Danolds, for an indefinite time, during which Danolds erected the house, and afterwards, for a valuable consideration, surrendered his lease ; for though the words are that he “ reconveyed ” the premises to his lessor, by a lease similar to that under which he held them, the legal effect was a surrender of the lease and a merger of the term. The conveyance, by a lessee for years of all his leasehold interest to the lessor and owner in fee, is, in legal operation, a surrender. The term for years merges in the larger estate, which thus becomes absolute. Cruise’s Digest, Tit. 8, c. 2, §§ 23, 30. By this surrender, the house erected by the tenant, and conveyed without reservation, became permanently annexed to the freehold, as effectually as if it had been built by the owner of the soil. When he made a new lease, it was a demise of the whole estate, including the building ; and although, through mesne assignments, the same term came to Danolds, it gave him no right in the building, as personal property ; nor did it revive a right which he once might have had, and which he had legally parted with. The attachment of the house, therefore, as the personal property of Danolds, was void.

Plaintiff nonsuit.