Dolliver v. Ela

• Citation: 128 Mass. 557
• Parties: Thomas H. Dolliver, administrator, v. George W. Ela
• Decision Date: 22 June 1880
• Court: United States State Supreme Judicial Court of Massachusetts

128 Mass. 557

Thomas H. Dolliver, administrator, v. George W. Ela

Supreme Court of Massachusetts

June 22, 1880

Essex. Tort for the conversion of certain buildings. Trial in the Superior Court, without a jury, before Pitman, J., who reported the case for the determination of this court, in substance as follows:

It appeared that the buildings in question were erected by one Ashworth, upon land of the defendant, in such a manner as to become a part of the realty but for the contract hereinafter referred to, and that they were never physically severed from the realty up to the date of the writ. At the time of their erection, which was in the spring of 1868, Ashworth was in the possession of the land under the following circumstances. He had been previously a tenant of the defendant under a written lease, and had erected a brewery which had been destroyed by fire. On February 17, 1868, the lease was cancelled by mutual consent, and a warranty deed was made and signed by the defendant, conveying the premises for a price agreed to Ashworth, and at the same time Ashworth executed a mortgage back to the defendant to secure a part of the purchase money. The mortgage deed was delivered to the defendant, but the warranty deed was not delivered. The defendant gave to Ashworth, as a part of the same transaction, a written agreement by which he agreed to deliver the deed upon receiving that portion of the purchase money not covered by the mortgage. This money was never paid nor the deed delivered. Ashworth continued to occupy the premises under an agreement to pay defendant, quarterly, a sum equal to the quarterly interest upon the purchase money.

Prior to the erection of the buildings in question, it was understood and agreed, but not in writing, between the defendant and Ashworth, that they were not to be the property of the defendant, but that he, Ashworth, should have the right to remove them at any time. While Ashworth was in possession of the premises as aforesaid, on October 3, 1868 he conveyed the buildings, by a bill of sale in common form and under seal, to the plaintiff's intestate, for a valuable consideration, and she took possession. On April 7 1869, the defendant, at the request of Ashworth, conveyed the land, by warranty deed in common form, to one King; and thereupon, and as a part of the same transaction, the agreement for a deed from the defendant to Ashworth was given up, and Ashworth gave to the defendant a release of the land "with all the privileges and appurtenances thereto belonging."

At the time of the deed to King, the defendant did not know of the conveyance from Ashworth to the plaintiff's intestate. The deed to King and the deed of release to the defendant were duly recorded on April 9, 1869. King had no knowledge of the bill of sale of Ashworth to the plaintiff's intestate. The deed to King made no mention of the buildings but described the land by metes and bounds, and the habendum contained the usual phrase "with all the privileges and appurtenances thereunto belonging." The defendant had no actual possession of the premises from February 17, 1868, down to October 1872, when he entered to foreclose a mortgage of the estate given by King to him.

The defendant asked the judge to rule as follows: "1. No title to the buildings, while annexed to the realty, could pass to the plaintiff's intestate, as against the defendant, by the bill of sale. 2. This action will not lie against the defendant upon the evidence, even though the plaintiff's intestate had the right of removal. 3. There was no evidence which would authorize a finding that the defendant converted the buildings."

The judge refused so to rule, but held, as matter of law, that as against the defendant, the title to the buildings did pass to the plaintiff's intestate by the bill of sale; that this action would lie upon the facts; and that the deed from the defendant to King operated as a conversion of the buildings, enabling King, a purchaser without notice, to hold the same as against the plaintiff's intestate, as a part of the realty; and, upon these findings and rulings, found for the plaintiff, and...