Menard v. Courchaine

• Decision Date: 30 December 1931
• Parties: MENARD v. COURCHAINE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

278 Mass. 7

179 N.E. 167

MENARD

v.COURCHAINE et al.

Supreme Judicial Court of Massachusetts, Bristol.

Dec. 30, 1931.

Appeal from Superior Court, Bristol County; Broadhurst, Judge.

Suit by Joseph Menard, as executor of the will of Virginie Bedard, against Polycarpe L. Courchaine and others. From decree for plaintiff, defendant Polycarpe L. Courchaine appeals.

Affirmed.

Orient La Plante and Arthur E. Seagrave, both of Fall River, for plaintiff.

David Silverstein, of Fall River, for defendant.

CROSBY, J.

This suit in equity is brought by the executor of the will of Virginie Bedard against the defendants. Before November 23, 1929, the defendant Cadorette was the owner of certain real estate bordering on a pond in Fall river upon which was situated an ice house, and connected therewith was an ice hoist or ice run which extended from the ice house to the pond. Certain sheds were also on the premises which covered the stationary engines used in connection with the plant. There was a first mortgage on the property held by one Croteau, and a second mortgage held by the plaintiff's testatrix.

The case was referred to a master who found the following facts: On or about January 25, 1928, by reason of a storm, the ice hoist and sheds attached thereto were blown down and completely destroyed. On the same day Cadorette and the defendant Courchaine (who will hereafter be referred to as the defendant) entered into an agreement, in writing, for the erection of a new ice hoist and sheds pertaining thereto and belting housing connected therewith, by which these structures were to remain the personal property of the defendant until paid for. An oral agreement between these parties made at the same time need not be referred to. Thereafter the defendant constructed the hoist, sheds and housing, and connected the apparatus to the ice house by means of hooks, lag-screws or bolts, using no nails for this purpose. On or about November 12, 1929, the defendant went upon the mortgaged premises and removed therefrom the structures he had erected and affixed to the ice house, claiming that he had a right to do so because of a breach of the agreement between himself and the mortgagor that the hoist and equipment should remain personal property until paid for. On November 14, 1929, the plaintiff, in writing, notified the defendant that he claimed the structures under his mortgage and would hold him liable for all damages caused by such removal. The plaintiff made an entry upon the premises under the mortgage held by him for the purpose of foreclosing the same, and a certificate thereof was filed in the registry of deeds on November 14, 1929. He later commenced foreclosure proceedings which were discontinued at the request of the defendant, and by reason of the institution of proceedings begun by the defendant Croteau to foreclose the first mortgage under which the premises were sold on November 23, 1929, to one Oulette. The master found that the first and second mortgagees acted independently and in good faith; that before the foreclosure sale the defendant told the plaintiff and Croteau that he claimed the hoist as his personal property, but that at the time of its erection neither mortgagee was notified of such claim; that the difference in value of the ice house on November 12, 1929, before the removal of the hoist, sheds and appliances connected therewith, and on November 23, 1929, the date of the foreclosure sale, without the hoist and other appliances which had been removed, was $2,700.

Upon the facts found by the master the trial judge ruled, in substance, that the ice hoist, sheds and housing built by the defendant became a part of the real estate, and were subject to the outstanding mortgages; that in removing the structures the defendant acted in violation of the rights of the mortgagees and impaired the value of the security under the mortgages in the sum of $2,700. The judge further ruled that in view of the pleadings the defendant Croteau was not entitled to any part of the damages found to be payable by the defendant Courchaine. A...