Opinion
Decided June 29, 1933.
Bulky and heavy articles attached to a building and adapted, designed and intended to be a part thereof and not intended to be removed therefrom are parts of the real estate. Under P. L., c. 332, s. 21 pews in a church are not personal property subject physical seizure by attachment but only the individual pew owner's right to the occupancy thereof is attachable; and if pews are attached to the church building with the intention of making them a part thereof they pass by a sale as part, of the real estate. The fact that after an attachment of personalty one having it in his possession is summoned as trustee of the original owner constitutes no defence against the special title of the sheriff obtained by the attachment.
BILL IN EQUITY, brought against a sheriff to determine the rights of the parties in regard to certain property attached by a deputy as the goods of the Holy Cross Polish Catholic Church. The case was sent to a master who reported findings and rulings.
The property consists of various church and domestic furnishings, attached to or used in a church formerly owned by the Holy Cross Church. The church edifice was sold by the sheriff on execution, and is now owned by the plaintiff, which has possession of the property now in litigation. The latter was attached by the sheriff as the property of the Holy Cross Church, before the execution sale of the real estate.
Other creditors have sued the Holy Cross Church, and summoned the plaintiff as trustee.
Having found that certain of the articles were, and that others were not, attached to the realty and with a purpose to make them parts thereof, the master ruled accordingly, except as to the pews in the church. As to these the affixation and intent were found, but the master ruled that notwithstanding such facts he was obliged to conclude that they were personal property, because of the provisions of P. L., c. 332, s. 21.
The court, Woodbury, J., ordered a decree in accordance with the master's report, and transferred the case upon exceptions taken by each party.
Arthur B. Hayden and Wyman, Starr, Booth Wadleigh, for the plaintiff.
Osgood Osgood, for the defendant.
This is a proceeding to determine the title to certain church fittings and paraphernalia. No question has been made as to the manner in which the question has been presented. The decisive fact as to each article is whether it is personal property or real estate. In so far as it is real estate the plaintiff is to prevail, and as to personal property the defendant has the superior right.
Many of the articles are bulky, heavy, and attached to the church building. As to each of these the master found that it was "adapted, designed and intended when installed to be and remain a part of the church building and it was not intended that it should be removed therefrom." Upon this finding he ruled that these articles were parts of the real estate.
The ruling was correct. "The purposes of the annexation and the intent with which it is made are the important considerations." Langdon v. Buchanan, 62 N.H. 657, 660, and cases cited; Graton c Company v. Company, 69 N.H. 177.
As to the pews in the church the master made a similar finding, but because of the provisions of chapter 332, section 21 of the Public Laws, felt obliged to rule that they were personal property. This conclusion was erroneous, because the statute does not apply to the present situation. The statute referred to provides that pews shall be deemed personal property and may be attached by leaving a copy of the writ and return with the town clerk. The pews therein referred to are not the physical structures in a church edifice, but an individual's right to the occupancy thereof. "It is a qualified ownership, subject to the superior title included in the ownership of the house." First Presbyterian Society v. Bass, 68 N.H. 333, 337. Other statutory provisions, relating to a levy thereon (P. L., c. 344, s. 11) and as to the sale and repair of meeting houses (Ib., c. 233) confirm this view. Upon the master's finding of fact, the pews should be treated as real estate.
The balance of the property consisted of portable ecclesiastical and household furnishings. As to these the master found that they are "no more designed to be a part of the realty than a hoe which is useful on a farm," and ruled that they were personal property. This ruling was correct.
While this proceeding was pending, certain creditors of the original owner of the church brought suit against it and made the plaintiff trustee therein. By amendment to the bill the plaintiff set up an alleged liability under the trustee-process as a defence against the sheriff's claim to the attached chattels. It would seem to be self evident that the special title of the sheriff to the goods he held under attachment could not be interfered with in this way. His title is such that he can maintain trespass or trover against one who wrongfully interferes with his possession. For the purposes of this litigation he, and not the debtor he was proceeding against, was the rightful possessor of the goods. Johnson v. Railway, 44 N.H. 626, and cases cited. Such title as the debtor had was subject to the sheriff's rights, and those rights could not be defeated by a proceeding of this sort.
It follows that the order of the court approving the master's conclusions was correct, except as to the item of the pews in the church.
Case discharged.
WOODBURY, J., did not sit: the others concurred.