Poor v. Oakman , 104 Mass. 309 ( 1870 )

Chapman, C. J.

The plaintiffs’ title to recover the value of the meeting-house depends upon the question whether it was, at the time of the sale to them, personal estate or a part of the realty. If it was a part of the realty when erected, the legal title to it was at the first in the defendant. What equitable relations existed between him and the society cannot be considered here. The defendant might consent to an oral sale of it to the plaintiffs; and after such sale, and the severance of the structure from the land, it would become personal property. Not only a structure, but trees, grass, stone in a quarry, and other things which are a part of the realty, may be sold by oral agreement, and removed by virtue of an oral license ; but it is well established law that before the severance the owner may revoke the sale and the license, and no title will have passed to the purchaser, and he will have no right to go upon the land and sever and remove the property. Claflin v. Carpenter, 4 Met. 580. Nettleton v. Sikes, 8 Met. 34. Nelson v. Nelson, 6 Gray, 385. Stearns v. Washburn, 7 Gray, 187. Lamson v. Patch, 5 Allen, 586. The principle is well stated in Giles v. Simonds, 15 Gray, 441. If standing trees are sold, they become personal property by being cut, and the license to go upon the land and take them away becomes irrevocable; but before they are cut the license may be revoked, — otherwise it would ex proprio vigore convey an interest in the land. See also Burton v. Scherpf, 1 Allen, 133, as to the sale of a ticket for a concert. The same doctrine applies to buildings owned as real estate, and sold with intent to be severed. Shaw v. Carbrey, 13 Allen, 462.

The ground of these decisions is, that the statute of frauds requires that a sale of any interest in real estate, in order to be valid, must be in writing. In this case, if there was any consent given by the defendant to the sale and removal of the building, it was revoked before the sale, and before any attempt to remove or sever the house from the land. If, then, the plaintiffs can maintain this action, it must be upon the ground that the house was built upon the land as personal property, and never became fixed to the realty.

It was not erected as a trade fixture, to be removed before the term of a lease should expire; for there was no lease of the land, even at will, as was held in Doty v. Gorham, 5 Pick. 487. Nor was it like the building standing on wooden blocks, which was the subject of controversy in Hinckley v. Baxter, 13 Allen, 139, and which was never annexed to the land. It was a large building, affixed to the soil by stone walls and excavations of considerable depth; and, so far as its character is to be determined by these particulars, it was as completely a part of the realty as any building could be. Nor was it built with any intent it should remain there temporarily, as personal property under an oral license from the owners of the land, and then be removed, within a reasonable time, upon the revocation of the license. But Oakman & Eldridge had given a bond to Carleton, the treasurer of the society, to convey the land to him on the terms therein stipulated ; and it was the expectation of all parties interested in the house, that a conveyance should be made to the society. Carleton testified that he took the bond for his own benefit. This may not be very material, as Carleton was in fact their treasurer. The term stated in the bond had expired; but time was not a material part of the contract. The conduct of.Eldridge, in acting as a member of the building committee of the society, and appropriating the money of’ the subscribers and the society to the building of the house, was inconsistent with such an idea, as were also the repeated declarations of himself and Oakman. Of the same character were their purchase of pews, and then agency in the sale of pews to others. They had also an interest in the structure itself, by investing money in it, both as subscribers and as purchasers of pews. The idea of treating the house as personal property does not appear to have occurred to any one till a question arose as to the time when a conveyance should be made to the society, and Eldridge, in the presence of Oakman, endeavored to quiet apprehensions by stating what he supposed the legal rights of the society were.

In First Parish in Sudbury v. Jones, 8 Cush. 184, it was held that buildings are part of the freehold; and if erected on the land of another voluntarily and without any contract, they become the property of the owner. But there is no evidence of any contract between the society and Oakman, either express or implied, that the house should be erected on his land as personal property. The agreement is an essential part of the matter. If a husband erect buildings on the land of his wife, they become realty, because he cannot contract with her. Washburn v Sproat, 16 Mass. 449. So a house erected by a reversioner during the intervening term becomes real estate. Coopery. Adams, 6 Cush. 87. So a building erected by one who has a contract foi a conveyance of the land is a part of the realty. Eastman v. Foster, 8 Met. 19, 26. In Oakman v. Dorchester Insurance Co. 98 Mass. 57, upon evidence not varying essentially from that which appears in the report of this case, this building was held to be real estate. See also Howard v. Fessenden, 14 Allen 124,128.

In Pullen v. Bell, 40 Maine, 314, it was held that a house erected by one who took possession under an oral agreement for a bond for a deed was personal property, and that a purchaser under an execution might maintain an action of trover against the owner of the land, who would not allow him to remove it. But our cases, cited above, do not sustain this view. There are several other cases in Maine which go further than ours. Russell v. Richards, 1 Fairf. 429, and 2 Fairf. 371. Hilborne vBrown, 3 Fairf. 162. Jewett v. Patridge, Ib. 243. We are satisfied that the eases in Massachusetts go as far as the statute of frauds will permit. Nor are any of our cases inconsistent in principle with those above cited from our reports. See Wells v. Banister, 4 Mass. 415; Doty v. Gorham, 5 Pick. 487; Ashmun v. Williams, 8 Pick. 402; Belding v. Cushing, 1 Gray, 576.

Upon the whole, we think there was not sufficient evidence to authorize the jury to find that the building ever was personal estate. Nor was the defendant estopped to revoke his oral consent that the building might be sold and removed. He did nothing that could amount to a legal estoppel.

As to the personal property in the building, it does not appear that he ever made claim to it, or hindered the purchaser from removing it. His contest with Coan was for the possession of the building, and no question arose as to the right of the owners of the furniture to carry it away. But Oakman having a right to the building, had a right to its exclusive pas» session, and to the possession of the key. This would not amount to a conversion of the furniture.

Judgment for the defenimt.