104 Mass. 309
Supreme Judicial Court of Massachusetts.

JOHN R. POOR & another

v.

SAMUEL OAKMAN.

March Session, 1870.

Headnotes

A., owing land, gave B. a bond for a deed of it. A religious society was afterwards formed, of which B. was treasurer. A. sold the land to the firm of C. & D., and B. surrendered his bond and took from them another bond to convey the land to him upon his paying a certain price for it on or before a specified day. After this day had passed without such payment, the society, through a committee of which D. was chairman, built a meeting-house on the land, upon stone foundations set deep in the ground, procured insurance on it, and put furniture in it. C. was clerk of the society, and solicited subscriptions towards the cost of the building, recommended purchases of the pews as a good investment, and spoke of the building as belonging to the society; it was the general expectation of the members of the society that C. & D. would convey the land to it for the price named in B.’s bond; and on the pastor’s asking for a conveyance in order to make the society secure, D. replied that it was in no danger, for it could remove the building when it should choose. After this, C. refused to convey the land to the society till its debts were paid. A creditor sued the society, and attached the meeting-house and furniture on his writ; recovered judgment; and assigned the judgment to C. & D., who directed the officer to sell the attached property on the execution, and were present at the sale. After the officer had received some bids, C. announced that he claimed the building as part of the realty, and should resist its removal by any buyer, and the officer declared that he did not warrant title to any of the property; but the sale proceeded, and the whole property was bid off for an entire price, which the officer received, and out of it paid to C. & D. the amount of their execution, and delivered the key of the meeting-house to the buyer as a symbolical delivery of the property. The buyer gave the key to the sexton, with directions to take care of the property; and C. then expelled the sexton from the building, and took possession of it, whereupon the buyer sued C. for a conversion. Held, that the meeting-house was not built on the land as personal property, but was fixed to the realty; and that C. & D. were not estopped to deny the buyer’s title in it.Proof of the taking of exclusive possession of a building by a person who has a right to such possession, and of his putting a new lock on a door, the key of which he knows is held by the owner of some furniture in the building, will not warrant a finding of a conversion of the furniture by him, in the absence of any evidence that he ever made claim to the furniture or hindered its owner from removing it.

Counsel

H. W. Paine & G. A. Somerby, for the plaintiffs. 1. The plaintiffs bought the meeting-house and furniture at the sale on the execution, and paid the purchase money to the officer, who paid it to the defendant for himself and Eldridge.

2. The house was erected by the society on land of Oakman & Eldridge, with their knowledge and consent, and not under any contract for the purchase of the land by the society. When Carleton’s first bond was made, the society had no existence, and the time of the last bond had expired when the house was begun. Carleton took the bond for himself, and not for the society. The society obtained insurance on the house through Eldridge as one of the building committee, and paid the premium. And Eldridge told the pastor, who called on him for a deed, that the society could remove the house whenever it chose. Upon these facts, the plaintiffs contend that the house was personal property of the society, and liable to be taken on execution for its debts. Osgood v. Howard, 6 Greenl. 452. Hilborne v. Brown, 3 Fairf. 162. Jewett v. Patridge, Ib. 243. Fuller v. Tabor, 39 Maine, 519. Pullen v. Bell, 40 Maine, 314. Shaw [**10]  v. Carbrey, 13 Allen 462. Hinckley v. Baxter, Ib. 139. Howard v. Fessenden, 14 Allen 124, 128. The doctrine of Hutchins v. Shaw, 6 Cush. 58, and King v. Johnson, 7 Gray 239, is not applicable, as there was no contract or agreement for the purchase of this land or the payment of rent. It was a case of license.

3. The defendant is estopped to deny the title of the plaintiffs. His firm bought the judgment, obtained the execution, put it into the hands of the officer, and ordered him to advertise and sell the meeting-house. He expected to bid himself, and requested the officer to take his writ and attach, that he might receive any surplus; but finding that he had been anticipated, he resolved “not to bid much.” The company was assembled. The officer, in the presence of Oakman and Eldridge, received bids for the house and furniture; and then, finding that the officer was not likely to sell the house for a nominal price, Oakman for the first time proclaimed himself owner of it and the land. He knew that it was then knocked down to the plaintiffs, and the next day he received and receipted for their purchase money. Andrews v. Lyon, 11 Allen 349. Tobey v. Chipman, 13 Allen 123. Hooker [**11]  v. Hubbard, 97 Mass. 175.

4. If the plaintiffs acquired title in the meeting-house, the proof of the defendant’s conversion of it is clear.

5. There was evidence for the jury, of a conversion of the furniture. Forsyth v. Hooper, 11 Allen 419. If Oakman expelled the plaintiffs’ keeper and put new locks on the doors for the purpose of preventing the removal of the furniture by the plaintiffs, this was a conversion.

C. B. Goodrich & S. J. Thomas, for the defendant.

Judges: Chapman, C. J.

Opinion by: Chapman

Opinion

[*315]  Chapman, C. J. The plaintiffs’ title to recover the value of the meeting-house depends upon the question whether it was, at the time of the sale to them, personal estate or a part of the realty. If it was a part of the realty when erected, the legal title to it was at the first in the defendant. What equitable relations existed between him and the society cannot be considered here. The defendant might consent to an oral sale of it to the plaintiffs; and after such sale, and the severance of the structure from the land, it would become personal property. HN1 Not only a structure, but trees, grass, stone in a quarry, and  [*316]  other things which are a part of the [**12]  realty, may be sold by oral agreement, and removed by virtue of an oral license; but it is well established law that before the severance the owner may revoke the sale and the license, and no title will have passed to the purchaser, and he will have no right to go upon the land and sever and remove the property. Claflin v. Carpenter, 4 Met. 580. Nettleton v. Sikes, 8 Met. 34. Nelson v. Nelson, 6 Gray 385. Stearns v. Washburn, 7 Gray 187. Lamson v. Patch, 5 Allen 586. The principle is well stated in Giles v. Simonds, 15 Gray 441. If standing trees are sold, they become personal property by being cut, and the license to go upon the land and take them away becomes irrevocable; but before they are cut the license may be revoked, — otherwise it would ex proprio vigore convey an interest in the land. See also Burton v. Scherpf, 1 Allen 133, as to the sale of a ticket for a concert. The same doctrine applies to buildings owned as real estate, and sold with intent to be severed. Shaw v. Carbrey, 13 Allen 462.

The ground of these decisions is, that the statute of frauds requires that a sale of any interest in real estate,  [**13]  in order to be valid, must be in writing. In this case, if there was any consent given by the defendant to the sale and removal of the building, it was revoked before the sale, and before any attempt to remove or sever the house from the land. If, then, the plaintiffs can maintain this action, it must be upon the ground that the house was built upon the land as personal property, and never became fixed to the realty.

It was not erected as a trade fixture, to be removed before the term of a lease should expire; for there was no lease of the land, even at will, as was held in Doty v. Gorham, 5 Pick. 487. Nor was it like the building standing on wooden blocks, which was the subject of controversy in Hinckley v. Baxter, 13 Allen 139, and which was never annexed to the land. It was a large building, affixed to the soil by stone walls and excavations of considerable depth; and, so far as its character is to be determined by these particulars, it was as completely a part of the realty as any building could be. Nor was it built with any intent it should remain there temporarily, as personal property  [*317]  under an oral license from the owners of the land, and then be [**14]  removed, within a reasonable time, upon the revocation of the license. But Oakman & Eldridge had given a bond to Carleton, the treasurer of the society, to convey the land to him on the terms therein stipulated; and it was the expectation of all parties interested in the house, that a conveyance should be made to the society. Carleton testified that he took the bond for his own benefit. This may not be very material, as Carleton was in fact their treasurer. The term stated in the bond had expired; but time was not a material part of the contract. The conduct of Eldridge, in acting as a member of the building committee of the society, and appropriating the money of the subscribers and the society to the building of the house, was inconsistent with such an idea, as were also the repeated declarations of himself and Oakman. Of the same character were their purchase of pews, and their agency in the sale of pews to others. They had also an interest in the structure itself, by investing money in it, both as subscribers and as purchasers of pews. The idea of treating the house as personal property does not appear to have occurred to any one till a question arose as to the time when a conveyance [**15]  should be made to the society, and Eldridge, in the presence of Oakman, endeavored to quiet apprehensions by stating what he supposed the legal rights of the society were.

In First Parish in Sudbury v. Jones, 8 Cush. 184, it was held thatbuildings are part of the freehold; and if erected on the land of another voluntarily and without any contract, they become the property of the owner. But there is no evidence of any contract between the society and Oakman, either express or implied, that the house should be erected on his land as personal property. The agreement is an essential part of the matter.  If a husband erect buildings on the land of his wife, they become realty, because he cannot contract with her. Washburn v. Sproat, 16 Mass. 449. So a house erected by a reversioner during the intervening term becomes real estate. Cooper v. Adams, 6 Cush. 87. So a building erected by one who has a contract for a conveyance of the land is a part of the realty. Eastman  [*318]  v. Foster, 8 Met. 19, 26. In Oakman v. Dorchester Insurance Co. 98 Mass. 57, upon evidence not varying essentially from that which appears in the report of this case, this [**16]  building was held to be real estate. See also Howard v. Fessenden, 14 Allen 124, 128.

In Pullen v. Bell, 40 Me. 314, it was held that a house erected by one who took possession under an oral agreement for a bond for a deed was personal property, and that a purchaser under an execution might maintain an action of trover against the owner of the land, who would not allow him to remove it. But our cases, cited above, do not sustain this view. There are several other cases in Maine which go further than ours. Russell v. Richards, 1 Fairf. 429, and 2 Fairf. 371. Hilborne v. Brown, 3 Fairf. 162. Jewett v. Patridge, Ib. 243. We are satisfied that the cases in Massachusetts go as far as the statute of frauds will permit. Nor are any of our cases inconsistent in principle with those above cited from our reports. See Wells v. Banister, 4 Mass. 514; Doty v. Gorham, 5 Pick. 487; Ashmun v. Williams, 8 Pick. 402; Belding v. Cushing, 1 Gray 576.

Upon the whole, we think there was not sufficient evidence to authorize the jury to find that the building ever was personal estate. Nor was the defendant estopped to revoke his oral [**17]  consent that the building might be sold and removed. He did nothing that could amount to a legal estoppel.

As to the personal property in the building, it does not appear that he ever made claim to it, or hindered the purchaser from removing it. His contest with Coan was for the possession of the building, and no question arose as to the right of the owners of the furniture to carry it away. But Oakman having a right to the building, had a right to its exclusive possession, and to the possession of the key. This would not amount to a conversion of the furniture.

Judgment for the defendant.

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