Allen v. Mooney

• Decision Date: 15 January 1881
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Charles H. Allen executor, v. John T. Mooney & another

130 Mass. 155

Charles H. Allen executor, v. John T. Mooney & another

Supreme Court of Massachusetts

January 15, 1881

Argued November 4, 1880

Essex. Tort, by the executor of the will of Thomas M. Saunders, for the conversion of a furnace and pipes, four iron registers and the soapstone foundations in which the registers were fixed. Answer, a general denial. Trial in the Superior Court without a jury, before Allen, J., who allowed a bill of exceptions in substance as follows:

It appeared in evidence that the plaintiff's testator held two mortgages upon certain real estate in Salem, consisting of a dwelling-house with the land under and adjoining the same, the first mortgage being dated October 14, 1874, and the second May 24, 1876; and that, in October 1876, A. S. Dudley, the owner of the real estate subject to the mortgages, purchased of the defendants a furnace of the kind commonly known as a "portable furnace," with the pipes and registers connected therewith. The articles were sold on credit at first, and afterwards a note was given by Dudley to the defendants in payment.

The furnace, with the pipes and registers, was placed in the house standing on the premises, the house being a part of the premises when the mortgages were given. An excavation a foot in depth was made in the cellar of the house and a brick foundation built therein with mortar. The top of this brick foundation was covered with mortar and the furnace placed thereon.

The evidence was conflicting upon the question whether or not the furnace was in any way attached to the brick foundation by the mortar; but the judge found as a fact that it was not so attached, and that the mortar was placed on the top of the foundation, not for the purpose of fixing the furnace to the foundation, but in order to make a level surface for the furnace to rest upon, and to prevent the entrance of air underneath.

Four pipes extended from the furnace to the lower floor, and other pipes through closets to the upper part of the house, and registers were placed in the floor in the lower story, and in the floor and partitions in the upper part of the house.

The note given in payment for the furnace and other articles not being paid at maturity, the defendants, without the authority or knowledge of the mortgagee, but with the consent and by the authority of Dudley, who occupied the premises, entered thereon, took the furnace off the brick foundation, and carried away the furnace, the four pipes leading to the first floor, and the four registers, with the soapstone in which they were set on the lower floor, leaving the foundation, the remaining pipes and registers, and everything else connected with the furnace, in the house.

Upon this evidence, the defendants requested the judge to rule that, as between the parties to this action, the articles taken were not a part of the realty; and that no conversion of the plaintiff's property had been shown. But the judge refused so...