Howard v. Fessenden , 96 Mass. 124 ( 1867 )

Wells, J.

The pleadings put in issue the right of thé petitioner to have partition as prayed for, in part; Gen. Sts. c. 106, § 16; viz. as to the house and barn standing on one corner of one of the lots. The general description as land, in the petition, is sufficient to include the buildings. By the replication, the petitioner expressly avers that these buildings are part of the realty, and that he is owner of them in the same proportions that he is owner of the land, and is entitled to have partition accordingly. His right to have such partition of the buildings as well as the land depends upon his title to them as realty; and, if he has no such title, it is immaterial whether the respondent owns them as realty or as personal property. He claims to hold them as personal estate of himself and one Albert L. Fessenden. If he can establish that right, the judgment for partition should be limited accordingly ; the petitioner should not have partition of these buildings; nor a partition of the land based upon a valuation which includes these buildings. Parson v. Copeland, 38 Maine, 537.

Upon the trial of this issue in the superior court, the judge ruled, at the request of the plaintiff, “ that there was no evidence, competent for the consideration of the jury, as tending to prove title to the buildings ” in the Fessendens, separate from the land. The reason assigned for this decision was, that by moving out of the house and leaving the buildings on the land, “ not retaining possession or continuing occupation,” Day lost whatever rights be might liave had previously to hold the buildings as personal property, and so his sale to the Fessendens carried no title to them. But this view obviously overlooks all consideration of the facts that, before these transactions occurred, Walter Fessenden had become the owner of one undivided fourth of the land; that, by the terms of his deed, the buildings were reserved to Day; and that Fessenden had given permission, so far as he was concerned, that they might remain there until Day could dispose of or remove them. As tenant in common, Fessenden could lawfully occupy or authorize another to occupy any part of the land. His permission to Day to occupy with his buildings that portion of the land which they covered gave him all the rights of a tenant at will; at least until the other tenants in common should actually enter upon him. Rising v. Starmard, 17 Mass. 282. The mere fact of moving out of the house, preparatory to a sale and removal of the buildings, cannot be regarded as an abandonment of his rights. If it were so, it would be difficult to see how a tenant at will could ever exercise his right of removal of a dwelling-house, except by moving his family in the building. The time that elapsed before the sale, viz. from March 24th to April 2d, certainly did not exhaust the reasonable time to which he would be entitled for such a purpose. As a mere license to remove the buildings, this permission would continue a reasonable time, unless revoked, or defeated by the other tenants in common. And it was not determined in either mode. So far therefore as the ruling of the court rests upon the ground thus assigned for it, it was clearly wrong.

It is a more difficult question to determine whether the evidence would warrant a jury in finding that Day ever had anj right to hold the buildings as personal property. But we are of opinion that the evidence should have been submitted to the jury upon this question.

Prima facie all buildings, and especially dwelling-houses, belong to the owner of the land on which they stand, as part of the realty. It is only by virtue of some agreement with the owner of the land that buildings can be held by another party as personal property, with a right of removal. If erected wrongfully or voluntarily without such agreement, they become the property of the owner of the soil. If built by a husband upon land of his wife, they become realty, because he could make no agreement with his wife, and therefore the law cannot imply an agreement for separate ownership. Washburn v. Sproat, 16 Mass. 449. But when erected by a tenant for purposes of trade and business, the agreement for separate ownership and right to remove may be implied from the circumstances of the case, the relations of the parties, and usage. Penton v. Robart, 2 East, 88. Taylor v. Townsend, 8 Mass. 411. Van Ness v. Pacard, 2 Pet. 137. That the agreement for this purpose may be either express or implied is held in First Parish in Sudbury v. Jones, 8 Cush. 184, and Murphy v. Marland, Ib. 575. That an agreement for the right of removal, or that the buildings shall remain as the personal property of him who erects them, may be implied from the fact that they were erected by permission from the owner of the land, seems to be held in Wells v. Banister, 4 Mass. 514; Doty v. Gorham, 5 Pick. 487 ; Hinckley v. Baxter 13 Allen, 139; and Curtis v. Riddle, 7 Allen, 185. Such is the settled doctrine in the state of Maine. Osgood v. Howard, 6 Greenl. 452. Russell v. Richards, 1 Fairf. 429; S. C. 2 Fairf. 371. Jewett v. Patridge, 3 Fairf. 243. Pullen v. Bell, 40 Maine, 314. And in Parsons v. Copeland, 38 Maine, 537, it is applied to the case of one tenant in common, who erects buildings upon the land held in common, with the consent of his co-tenants See also Aldrich v. Parsons, 6 N. H. 556, and Dame v. Dame 38 N. H. 429. Of course, this is not the necessary implication from such permission, and will not be drawn when a differen intention of the parties is indicated by the terms of any express agreement between them in relation to the subject. Milton v. Colby, 5 Met. 78. Hutchins v. Shaw, 6 Cush. 58. Nor will it be drawn when a different intention is to be inferred from the interest of the party making the erections, or from his relations to the title in the land; as in case of buildings erected by a mortgagor ; Winslow v. Merchants’ Insurance Co. 4 Met. 306 ; or by one in possession under a bond for a deed; Murphy v. Marland, 8 Cush. 575; or by a reversioner of the entire estate ; Cooper v. Adams, 6 Cush. 87. None of the decisions however seem to exclude such an inference in a case like the present. Day had no direct interest in the land. His wife had a right, in expectancy, to one fourth of the reversion; but as that depended upon her becoming heir of Eliza Howard, by surviving her, it was a contingent interest only. Olney v. Hull, 21 Pick. 311. The evidence tended to show that he placed the buildings upon the land with the express consent of Mrs. Searles, the life tenant, and with the knowledge of one or more of the persons interested in the remainder; that he intended them for his own exclusive use, and incurred all expenses of their construction. That they were not regarded as improvements upon the real estate is indicated by the fact that he paid even for timber procured from the land for the frame. If Mrs. Searles had been owner of the fee, there would be no reason against holding the buildings to be the personal property of Day; and as against her they would undoubtedly have been so held. So far as it concerns the one fourth interest, which came to Mrs. Day after the death of Mrs. Searles, the reservation in the deed from Day and wife to Fessenden establishes conclusively the character of the buildings as personal property. And as against this petitioner it would be competent for the jury to find that they were personal property. Upon evidence peculiar or personal to himself; as upon his declarations or admissions, though made long since the erection of the buildings. Ashmun v. Williams, 8 Pick. 402. Applying the foregoing principles to the circumstances of the case, and to the admissions of the petitioner, as testified to by both Day and Fessenden, we think a jury would be justified in finding that, as against the petitioner, the buildings were held as personal property. His declarations as to Day’s ownership and his right to sell or remove the buildings may be supposed to have influenced Fessenden to purchase them; and there would be nothing unjust nor improper in holding him to their truth. Saunders v. Robinson, 7 Met. 310. Barnes v. Barnes, 6 Verm 388. The respondent is entitled to a new trial, and the verdict is accordingly set aside.