Hannah v. Frawley

• Decision Date: 29 December 1933
• Citation: 285 Mass. 28,188 N.E. 385
• Parties: HANNAH v. FRAWLEY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

285 Mass. 28

188 N.E. 385

HANNAH

v.FRAWLEY et al.

Supreme Judicial Court of Massachusetts, Barnstable.

Dec. 29, 1933.

Appeal from Superior Court, Barnstable County; Hanify, Judge.

Suit by Edwin J. Hannah, trustee, against Henry F. Frawley and others. From an interlocutory overruling of plaintiff's exceptions to report of the master and confirming of the report, and from a final decree dismissing the bill, the plaintiff appeals.

Affirmed.

H. A. Baker and A. B. Bagley, both of Boston, for appellant.

C. C. Reed, of Brockton, for appellees.

LUMMUS, Justice.

The defendants Henry F. Frawley and Albert E. La Belle are the owners of an equity of redemption, and the other defendants are their wives. One of them Lillian R. La Belle, owned a sectional ‘portable’ building of the dimensions of twenty feet by thirty feet, exclusive of the front and back porches. This building was moved on rollers as a unit, from its former location one hundred and fifty yards away, to the mortgaged premises, with the consent of the owners of the equity of redemption, and was set on sixteen wooden posts extending about four feet above the ground. The space under the building was covered by boards nailed to the posts. There was no chimney, but the building was wired for electricity and had plumbing connected with a cesspool. The building was used by Lillian R. La Belle as a tea room and grocery store during the summer months, and some of the waitresses in the tea room slept there. Removal of the building would cause ‘slight damage, if any, to the land,’ and none of the defendants intended that the building should become part of the realty. The plaintiff, who was the mortgagee, knew at the time that the building was being placed on the land, and made no claim to it until after he had entered to foreclose, at which time the defendant Lillian R. La Belle started to remove the building on rollers as a unit. This bill is brought to prevent its removal. After the confirmation of a master's report, finding the foregoing facts, and finding upon them that the building was personalty, a final decree was entered, dismissing the bill with costs. The plaintiff argues only his appeal from the final decree.

Between the mortgagee and the licensee of the owners of the equity of redemption, the building was of such a character that it could not be ruled as matter of law either that it became part of the realty or that it remained personalty. Medford Trust Co. v. Priggen Steel Garage Co., 273 Mass. 349, 353, 174 N. E. 126;Walker Dishwasher Corp. v. Medford Trust Co., 279 Mass. 33, 35, 180 N. E. 517, 81 A. L. R. 1437. After the physical facts were found, it became a further question principally of fact, whether the building was realty or personalty, and that depended for the most part upon the intention with which the building was placed upon the mortgaged land. Medford Trust Co. v. Priggen Steel Garage Co., 273 Mass. 349, 353, 354, 174 N. E. 126;Commercial Credit Corp. v. Gould, 275 Mass. 48, 52, 53, 175 N. E. 264;Commercial Credit Corp. v. Commonwealth Mortgage & Loan Co., Inc., 276 Mass....