Waverley Co-Operative Bank v. Haner

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: SANDERSON
• Citation: Waverley Co-Operative Bank v. Haner, 273 Mass. 477, 173 N. E. 699 (Mass. 1930)
• Decision Date: 12 December 1930
• Parties: WAVERLEY CO-OPERATIVE BANK v. HANER.

273 Mass. 477

173 N.E. 699

WAVERLEY CO-OPERATIVE BANK

v.HANER.

Supreme Judicial Court of Massachusetts, Middlesex.

Dec. 12, 1930.

Appeal from Land Court, Middlesex County; C. T. Davis, Judge.

Action by the Waverley Co-operative Bank against Lewis Haner. Judgment for plaintiff, and defendant appeals.

Affirmed.

N. J. Curhan, of Boston, for appellant.

J. E. Perry, of Boston, for appellee.

SANDERSON, J.

On October 4, 1929, the plaintiff recorded or filed for registration a mortgage of registered land executed by one Giovanni Morizio to it as mortgagee. The mortgage was in the statutory form for a co-operative bank mortgage, as defined in G. L. c. 183, § 22, and shown in form six in the appendix to that chapter, and contained the recital that ‘this mortgage is upon the statutory co-operative bank mortgage condition, for any breach of which the mortgagee shall have the statutory co-operative bank power of sale.’ Following the description of the premises the mortgage contains this language: ‘Including all furnaces, heaters, ranges, mantels, gas and electric light fixtures, screens, screen doors, awnings and all other fixtures of whatever kind and nature at present contained in said buildings, or hereafter placed therein prior to the full payment and discharge of this mortgage.’

On October 11, 1929, the defendant recorded a notice of a conditional sale of certain plumbing and heating fixtures to be installed in the building then under construction on the mortgaged premises. Prior to this date the mortgagee had neither actual nor constructive notice of the conditional sale of the fixtures. All of the property sold by the vendor to the owner was wrought into and attached to the building on the premises as a part of the plumbing and heating fixtures thereof, with the intention that they should remain as a permanent part of the building. Thereafter the mortgagee foreclosed its mortgage for breach of condition and sold the property at foreclosure sale on February 1, 1930, and, being the highest bidder, it bought the property at not more than the amount of the mortgage debt. It was agreed that the foreclosure vested good title in the mortgagee subject only to such rights, if any, as the vendor may have acquired under his notice of conditional sale. The judge of the land court ordered that a certificate of title issue to the bank, as requested, free from the notice of conditional sale. The question to be decided is whether he was justified in finding that all the property in question became a part of the real estate and in ruling that title thereto passed to the bank under the mortgage foreclosure. The parties agreed that some of the property could at the time of foreclosure have been removed without causing material or substantial damage to the building, and that the rest could not have been removed without causing such damage. They also agreed that all the personal property was built into the plumbing and heating system with the intention that it should permanently remain in the building.

[1]G. L. c. 184, § 13, as amended by St. 1929, c. 261, is in part in the following terms: ‘No conditional sale of heating apparatus, plumbing goods, ranges, buildings of wood or metal construction of the class commonly known as portable or sectional buildings, or other articles of personal property, which are afterward wrought into or attached to real estate, whether they are fixtures at common law or not, shall be valid as against any mortgagee, purchaser or grantee of such real estate, unless not later than ten days after the delivery thereon of such personal property a notice such as is herein prescribed is recorded in the registry of deeds for the county or district where the real estate lies.’ The general rule enunciated in Clary v. Owen, 15 Gray, 522, is that all property added to real estate after a mortgagee has acquired his title thereto inures to him except in cases where it is otherwise provided by agreement or by statute. See Automatic Sprinkler Corp. v. Rosen, 259 Mass. 319, 322, 156 N. E. 693.

Under R. L. c. 197, § 5, providing that a mechanic's lien shall not avail against a mortgage actually existing and duly recorded prior to the date of the contract under which the lien is claimed, the court held that a mortgage to secure future advances which the mortgagee was obligated to make took precedence over a mechanic's lien based upon a contract entered into after the mortgage was made and...