Wentworth v. S. A. Woods Machine Co.

This is an appeal from a decree of a justice of the Superior Court sitting in equity. The evidence is reported, and the report contains no statement of rulings made or facts found. If the evidence warranted a finding of facts on which the decree could properly be made, the decree must be affirmed. So far as the decision depends on findings of fact it will be sustained, unless the findings are clearly erroneous. Francis v. Daley, 150 Mass. 381. Sheffield v. Parker, 158 Mass. 330. Debinson v. Emmons, 158 Mass. 592. Biggerstaff v. Marston, 161 Mass. 101.

The contracts under which the machines were delivered pass no title until the condition is performed, and the vendor, if guilty of no loches, may reclaim the property, even from one who has purchased from the vendee in good faith, and without notice. Coggill v. Hartford & New Haven Railroad, 3 Gray, 545. Hirschorn v. Canney, 98 Mass. 149.

The evidence well warranted the finding that the defendant the Woods Machine Company did not waive the condition, and that the condition was not performed.

If the machines were of such a character, and if with the knowledge and consent of the Woods Machine Company they *33were affixed to the freehold in such a manner and under such circumstances as would make them a part of the real estate according to the rules applied between grantor and grantee, and if the plaintiffs acquired a title to the real estate without notice of the title of the machine company, they would belong to the plaintiffs under their deeds. Ridgeway Stove Co. v. Way, 141 Mass. 557. Southbridge Savings Bank v. Exeter Machine Works, 127 Mass. 542. This proposition presents for consideration questions of fact which must have been decided against the plaintiffs at the hearing. The evidence well warranted this decision. Fitzpatrick, when he ordered the machines, and for a long time afterwards, was only a tenant of the building in which they were placed. He got them insured as personal property, and the insurance was made payable to the S. A. Woods Machine Company as its interests might appear. In his insolvency proceedings the Woods Manufacturing -Company was included in his list of creditors, and its debt was alleged to be secured by instruments described as leases. When the real estate was conveyed to him he gave the plaintiff Marcy his note for $10,000 in part payment of the price, and he gave a mortgage on these machines as personal property to secure the note. The machines rested on the floor, and were fastened merely by screws through holes in the legs for the purpose of steadying them, they were of a regular stock pattern, they could be removed without injury to the building, and they were suitable for use in any other planing mill. All of these were facts proper to be considered by the judge in determining the question whether the machines had become a part of the real estate. It was a question of mixed law and fact, depending for its answer in part upon the intention of Fitzpatrick as manifested by his acts. We see no reason to question the correctness of the decision of the judge. Certainly his decision cannot be set aside as plainly wrong. Hubbell v. East Cambridge Five Cents Savings Bank, 132 Mass. 447, 449. Carpenter v. Walker, 140 Mass. 416. Southbridge Savings Bank v. Mason, 147 Mass. 500. Carpenter v. Allen, 150 Mass. 281. Hopewell Mills v. Taunton Savings Bank, 150 Mass. 519.

The plaintiffs contend that the administrator of Fitzpatrick should be ordered by the court to pay the S. A. Woods Machine Company the sums due to it under the leases which it holds on *34the property. The Superior Court rightly held otherwise. It appears that the estate of Fitzpatrick is deeply insolvent, and a use of the assets to redeem this property for the benefit of the plaintiffs, to one of whom Fitzpatrick mortgaged it, would be a preference of the plaintiffs over other creditors of the estate that would be inequitable. Crompton v. Pratt, 105 Mass. 255. Knight v. Thayer, 125 Mass. 25. Decree affirmed.