This is a bill in equity to enjoin the defendants from removing from the plaintiff’s land a barn which the defendants contend was personal property by force of the agreement under which it was built.

The barn was built in 1891 by three sons of Cyrus H. Cutter. Cyrus H. Cutter then owned the land on which the barn was built, and he gave to these three sons, who were partners in market gardening, a right to occupy his land in consideration of their paying the taxes on it and taking care of him and his wife so long as they lived. As we construe his findings, the judge who heard the case* did not find it necessary to decide whether the agreement under which the barn was built did or did not make it personal property. The three sons who were partners were George, who died in 1898, Charles, who died in 1909, and the defendant Edward H. Cutter. The plaintiff was a fourth son who was in the west when the barn was built. About a year after Charles died the defendant Edward Cutter brought a petition for partition of the land of the father. The commissioners appointed to make partition set off to the plaintiff in this suit inter alla a lot known as the “ Cutter Homestead.” The “ Cutter Homestead ” was the land on which the barn here in question stood, together with other buildings. It is described by the commissioners as “containing fifteen (15) acres, thirty nine (39) rods more or less,” and was appraised by them “for the sum of fourteen thousand'dollars (land ten thousand six hundred dollars and buildings thnty [sz'c] four hundred).” The judge made these findings: “In the course of the hearings had upon the said petition no claim was made by Edward H. Cutter that this building was personal estate or belonged to the partnership. The commissioners therefore appraised it as real estate, and made a decree as to the value of such real estate in accordance with the situation as disclosed by the evidence *26and with reference to the fact that no claim was made that it was personal estate. ” “The decree of partition was assented to by the respondent Edward H. Cutter.” “Although I can find upon the evidence in this case that this was originally considered as personal property and might have been removed from the premises without serious or irreparable injury to the estate, yet I find upon all the evidence that Edward H. Cutter was estopped by his conduct in connection with the original appraisal of the estate of Charles H. Cutter,* as well as by his silence in connection with the partition of the real estate of Cyrus H. Cutter, last referred to, from making any claim to the'building in question.”

As we interpret t}lis finding the judge who heard the case did not find it necessary (as we have already said) to decide whether the agreement under which the barn was erected provided that it should be personal property because he made the findings above set forth. One of the commissioners to make partition testified that the defendant Edward H. Cutter was present at the hearings of the commissioners and that there was a discussion at these hearing's as to the buildings on the “Cutter Homestead” lot and the value of them, and that there was no suggestion that any building on that lot was personal property.

After an examination of the evidence on which the case was decided we affirm the finding as to an estoppel arising out of the partition proceedings.

It is not necessary to consider the other questions argued.

The result is that the decree must be affirmed with costs.

So ordered.