Smith Paper Co. v. Servin

• Decision Date: 05 April 1881
• Citation: 130 Mass. 511
• Parties: Smith Paper Company v. Sarah A. F. Servin
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

130 Mass. 511

Smith Paper Company v. Sarah A. F. Servin

Supreme Court of Massachusetts

April 5, 1881

Argued September 28, 1880

Berkshire. Tort for the conversion of an iron table used in the manufacture of plate glass. Writ dated January 15, 1880. Answer: 1. A general denial. 2. That the defendant was the owner of a parcel of land with a factory thereon, to which the table was annexed as part of the realty.

Trial in the Superior Court, before Rockwell, J., who ruled that the plaintiff was entitled to maintain its action, directed a verdict accordingly, and reported the case for the determination of this court. If the ruling was correct judgment was to be entered on the verdict; otherwise, the parties agreed that such entry was to be made as law and justice might require. The facts appear in the opinion.

Judgment for the defendant.

A. J Waterman, for the defendant.

T. P Pingree & E. T. Slocum, for the plaintiff.

Endicott J. Colt, Morton, Field, JJ., absent.

OPINION

Endicott

We can have no doubt that the table which is the subject matter of this suit became part of the realty when placed in the factory.

The factory was for the manufacture of rough plate glass. When the defendant took her deed of the premises, it contained two ovens, in which the plates of glass were tempered and annealed, and two furnaces used for melting in crucibles the substances of which the glass was made. The furnaces rested on solid mason-work, and on the right and left of each was an iron table and a crane. By means of these cranes the crucibles were lifted from their places, and the molten glass poured upon the tables between iron strips of the required thickness, and then rolled by a roller weighing five tons, operated by a hand winch. The plate glass was then removed to the ovens, where after cooling it was tempered and annealed, and then cut into sheets of the required size. No other permanent fixtures appear to have been required and used in the factory. These tables were necessary and essential for the manufacture of plate glass, and were not adapted to any other use, and it must be presumed that the owner in placing them there intended them to be permanent fixtures to be used in the factory. They rested on brick walls two or three feet high, built upon stone foundations firmly imbedded in the ground, which formed the floor of the factory. These tables seem to have varied somewhat in size; but the table in question was eighteen feet long, ten feet wide, nine inches thick, and weighed thirty-three tons. These iron tables thus became part of the structures supporting them and imbedded in the ground, all portions of which were necessary for their proper use. The fact that they rested by their own weight on the brick work, and could be removed without materially disturbing it, did not make them any less a part of the structures placed in the factory. The structures as a whole became a part of the realty.

The table in question was placed in its position before May 10, 1875, by the Lenox Glass Company, to whom the premises had been conveyed by the Lenox Plate Glass Company, subject to a mortgage given by that company to Theodore Roosevelt in 1868. This mortgage in terms included "all the machinery, tools, engines and furnaces now existing or hereafter to be placed, built or erected thereon or to be attached thereto," and was outstanding in May 1875. Three of these tables were in the factory when the mortgage was given to Roosevelt. It is not now denied that they were covered by the mortgage as part of the realty; but it is denied that the table in question was covered by the mortgage.

Whatever is placed in a building subject to a mortgage, by a mortgagor or those claiming under him, to carry out the purpose for which it was erected, and permanently to increase its value for occupation or use, although it may be removed without injury to itself or the building, becomes part of the realty, as between mortgagor and mortgagee, and cannot be removed or otherwise disposed of while the mortgage is in force. Winslow v. Merchants' Ins. Co. 4 Met. 306. Southbridge Savings Bank v. Exeter Works, 127 Mass. 542. McConnell v. Blood, 123 Mass. 47. McLaughlin v. Nash, 14 Allen 136. Bainway v. Cobb, 99 Mass. 457.

The Lenox Glass Company had made a mortgage of its real and personal property in 1872 to trustees, subject to the Roosevelt mortgage, and the report finds that, on May 10, 1875, these trustees legally conveyed all their interest therein to Wellington Smith. Roosevelt duly entered on the premises to foreclose his mortgage June 15, 1875; and, on the next day, Smith conveyed to Roosevelt all his right, title and interest in the lands and property, real and personal, described in the Roosevelt mortgage; and Roosevelt accepted the conveyance, "for the purpose among other purposes of merging the whole title in him," as stated in the report. In neither of these last-mentioned deeds is there any reservation of, or allusion to, the table in question, which had become part of the realty. The deed from Smith therefore vested in Roosevelt all the interest which he had in the premises, including this table. Russell v. Smith, 8 Pick. 143. Roosevelt therefore from this time was in possession of the premises, both under the deed from Smith and under his entry to foreclose his mortgage. Upon this record, there is no ground for saying, as matter of law, that the title to this table remained in Smith; on the contrary, all the title to the premises and fixtures, including this table, appears to have passed to Roosevelt.

After the title had thus become complete in Roosevelt, he entered into a written agreement with Andrew T. Servin and Robert G Averill for the sale of all his right, title and interest in the premises described...