Titcomb v. Carroll

• Decision Date: 26 June 1934
• Citation: 191 N.E. 410,287 Mass. 131
• Parties: TITCOMB v. CARROLL et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

287 Mass. 131

191 N.E. 410

TITCOMB

v.CARROLL et al.

Supreme Judicial Court of Massachusetts, Middlesex.

June 26, 1934.

Appeal from Superior Court, Middlesex County; Gray, Judge.

Suit by Albert C. Titcomb, trustee, against J. E. Carroll and others. From a decree for defendants, plaintiff appeals.

Affirmed.

W. P. Everts, of Boston, for appellant.

H. Hoffman, of Boston, for appellees.

FIELD, Justice.

This is a suit in equity wherein the plaintiff seeks to have determined the title to an alleged building situated on land of the plaintiff and to enjoin the defendants McAndrews and Carroll from removing it. By amendment the Union Market National Bank was joined as defendant, the plaintiff alleging that said bank claims to be the owner of a mortgage upon said building. The case was referred to a master who made a report which was confirmed. Thereafter a final decree was entered adjudging that the so called building-a dining or lunch car-situated on the land of the plaintiff is personal property in which the plaintiff has no right, title or interest, but that it is the property of the defendant Carroll subject to a chattel mortgage held by the defendant Union Market National Bank, and the plaintiff appealed.

The decree was right.

The facts admitted by the answers or found by the master include the following: In September, 1925, Anna A. Walker and Alice M. Morse, predecessors in title to the plaintiff, leased to the defendant McAndrews and one John J. O'Leary, for a term of three years from September 1, 1925, ‘a lot of land * * * in Watertown * * * in rear of [287 Mass. 133]591 Mt. Auburn Street * * * to be used as location for dining car.’ The lease was extended for an additional term of three years, but has not been further extended. The defendant McAndrews and said O'Leary bought a dining or lunch car under a conditional sale agreement dated October 15, 1925, which contained a provision that title thereto should remain in the vendor until payment in full of the purchase price. The car was placed on the leased land. At some time said O'Leary assigned his interest in the lease, and sold his interest in the dining or lunch car, to the defendant McAndrews. October 31, 1929, the defendant McAndrews gave a chattel mortgage of the dining or lunch car to one Busconi, which was duly recorded in the town clerk's office, to secure the payment of a promissory note of said defendant McAndrews, and this note and chattel mortgage were assigned by said Busconi to the defendant bank as collateral security for his own promissory note. Both notes are unpaid. May 4, 1931, the plaintiff entered into a written agreement to acquire by exchange from Allison D. Walker-whose title does not seem to be questioned-‘a certain parcel of land with the building thereon * * * said building being numbered 583 to 591 on * * * Mt. Auburn Street,’ subject to certain leases and tenancies including ‘Dining car in rear of said building * * * leased to Dennis McAndrew expiring September 1, 1931.’ (This numbered building was not the dining or lunch car.) May 21, 1931, one Burr, ‘a straw-man for said Alliston D. Walker,’ conveyed to the plaintiff by a deed in statutory form with quitclaim covenants ‘a certain parcel of land with the buildings thereon situate and now numbered 583-591 Mt. Auburn Street in Watertown, Being the same premises conveyed by Alliston D. Walker to the grantor herein by deed dated May 6, 1931,’ subject to ‘several tenancies and leases.’ The plaintiff was paid rent under his lease through the month of May, 1931. August 31, 1931, the defendant McAndrews notified the plaintiff that he was to vacate the leased premises by November 30, 1931. The plaintiff made no claim that the dining or lunch car belonged to him until early in 1932, after the defendant McAndrews had notified him that he was going to move it from the premises. It has not been removed.

The dining or lunch car is a ‘stock pattern car,’ weighing seven tons, which was rolled on its own wheels to the premises and remained there on wheels for about a year and a half. Its weight is now carried substantially by one pair of wheels still under and attached to it, and by large wooden blocks which have been substituted for the detached pair of wheels. Some portion of the weight, however, rests upon a wall. ‘ The Wall was built of 8 inch blocks made of sand and cement which did not come quite up to the chassis of the dining car. The lower course was from six to eight inches under the surface of the ground. The opening between the said chassis and the top of the wall, as well as the wall itself was stuccoed which gave it the appearance of a solid wall right up to the chassis. There are eight steel beams running crosswise below the floor of the lunch car and forming a part thereof, four of them being I beams and 4 channel beams or bars, the ends of which rest upon the wall. On top of these beams are stringers going lengthwise of the lunch car. There is a wooden sill, also a part of the lunch car, underneath the ends and sides of the lunch car. The channel bars are forty-six inches between centers. The channel bars are embedded in the wall in this manner; there is a wooden block, four inches long and three inches wide, embedded in the wall on which the channel bars rest. The I beams are similarly embedded * * * the lunch car is not attached to the wall except that two iron truss rods attached at the ends of said lunch car to the under part thereof and having the general shape of an elongated inverted arch project downward into the wall which is built around them * * * [and] the lunch car can be readily removed but, on account of the embedding of said truss rods in the wall, it cannot be removed without substantial injury to the wall.’

The wall was erected before the plaintiff purchased the real estate. He had no knowledge of the circumstances under which it was built or the length of time it had been built before he received his deed of the premises, and no notice of the defendant McAndrews's title to the dining or lunch car except so far as such notice appears in his agreement to acquire the premises by exchange.

The master found, so far as it is a question of fact, ‘as a conclusion from * * * [his] foregoing findings of fact and the pleadings, that the lunch car is personal property; that it did not pass to...