Bacon v. Bowdoin

Wilde, J.

This case came on to be heard on the bill and answer, and on an agreed statement of facts, many of which, according to the view we have taken of the law and equity of the case, are wholly immaterial.

The principal question on which the decision of the case depends is, whether the property, demised by Shaw to the plaintiff, was real or personal estate. This question and several others, not now .contested, have been determined at a former hearing, on demurrer to the bill. 22 Pick. 401. But the defendants’ counsel now contend, that upon the facts agreed a different decision is required.

It is now agreed by the parties, that the building leased to the plaintiff was first erected by one Billings, he having no title to the land on which it was erected, and that the same was erected with the permission of Bowdoin, one of the defendants, and one Lewis, who were the owners of the land, to be used by Billings as a blacksmith’s shop. That this shop was by sundry conveyances finally sold to Joshua Shaw, the plaintiff’s lessor, as per sonal property. And from these facts, it is inferred by the defendants’ counsel, that the said Shaw so leased it to the plaintiff But we are of the opinion that this inference cannot be sustained, and that the lease cannot be so construed. By the conveyance of the building to Shaw, it became attached to the real estate. A large addition was made to it by him, before he leased it to the plaintiff. The building was not then completed ; but Shaw in the lease covenanted to complete the same, and to complete it in such a manner as to render it suitable for the manufacturing *598of cotton and other articles, and that he would put in a waterwheel and machinery suitable for this purpose. In pursuance of this covenant and agreement, Shaw put a new water-wheel into said building, and erected a new doom before the time limited for the commencement of the lease.

Considering these facts, in connexion with the terms of the plaintiff’s lease, we have no doubt that he has acquired a good title to the land on which the factory stands, so far as the occupation of it is necessary, during the continuance of the lease.

By the grant or lease of a house or any other building, the land on which it stands, with the privileges necessary to its enjoyment, passes by implication, unless the implication is rebutted by the language of the deed. 22 Pick. 401. Blake v. Clark, 6 Greenl. 439. In the present case, it abundantly appears that the building leased was to be occupied as a factory, the machinery in which was to be worked by a water power, sufficient for the purpose, which the lessor, by the lease, agreed to furnish. We are therefore clearly of opinion that the property leased to the plaintiff was real estate. It is no objection that the building was purchased by Shaw as personal property ; for by the purchase, Shaw being the owner of the- land on which the building stood, it thereby became attached to and a part of the realty, as effectually as if it had been built there by Shaw, or as if he had purchased it and moved it upon his land from another place.

There is but one other objection to the plaintiff’s title, upon which we deem it necessary to make a remark. It is objected that Shaw held the premises, with other real estate, in common with Lewis, and that his conveyance of a part of the common property, by metes and bounds, is void.

It is very clear, however, that this objection is not well founded. The conveyance is valid against Shaw and all persons claiming under him. It can be avoided by Lewis ; but neither of the defendants has shown any title under him.

Referred to a master, to take an-account of the sum due on hu mortgage, and of the rents and profits.