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contract with the third persons, and none of them had any actual knowledge of it. Held, that the conveyance to the trustees was not a conveyance to an innocent purchaser for value, and the trustees held the property subject to the trust in favor of the third person.
name of Barlow, who was to have the active management of the venture and sell the estate for the benefit of both. The plaintiff was to have one-half interest, subject to certain deductions for expenses, and the net proceeds were first to be applied to the repayment with interest of the $2,500 furnish
[Ed. Note. For other cases, see Trusts, Note.-For Cent. Dig. §§ 539-552; Dec. Dig. § 357.*] 8. TRUSTS (§ 243*)-EXPRESS TRUSTS-AGREE-ed by the plaintiff. By subsequent written MENTS-NOTICE.
Where trustees under a real estate trust agreement and declaration of trust resigned and others were appointed, the latter trustees took the legal title subject to the terms of the trust declaration, and subject to a trust in favor of a third person enforceable against the original trustees, though notice was not given to the new trustees.
[Ed. Note. For other cases, see Trusts, Cent. Dig. § 350; Dec. Dig. § 243.*]
4. TRUSTS (§ 357*)-EXPRESS TRUSTS-AGREEMENTS-TITLE.
Where the interest of the real owners of real estate conveyed to trustees under a real estate trust agreement and declaration of trust was represented by certificates of fractional parts, called shares, the purchasers of the shares from the trustees and their successors were not in the position of purchasers of real estate for value without notice, and their title was subject to the infirmities of transfers of personal property.
[Ed. Note.-For other cases, see Trusts, Cent. Dig. $ 539-552; Dec. Dig. § 357.*] 5. FRAUDS, STATUTE OF (§ 131*) - TRUST AGREEMENTS.
Where plaintiff and defendant agreed in writing to purchase real estate for their joint account for resale for a division of the proceeds after the repayment to plaintiff of the money advanced by him, and where the parties by subsequent written agreement substituted another tract for the one first acquired, the legal title to which was taken in the name of defendant, the rights of plaintiff rested on agreements in writing not affected by the statute of frauds.
[Ed. Note. For other cases. see Frauds, Statute of, Cent. Dig. §§ 283, 284; Dec. Dig. § 131.*]
agreement another tract of land was substituted for the one first described. These agreements were never recorded. It is plain upon familiar principles that the transactions up to this point raised a trust in favor of Bisbee, and Barlow held the title charged with the fiduciary duty to carry out the terms of the agreement. Baylies v. Payson, 5 Allen, 473, 488.
 Barlow failed in essential particulars to perform his part of the contract. In 1909 he conveyed this tract of land, together with others standing in his name, to one Roche, who was a mere conduit of title, and who in turn at the same time conveyed it to Barlow, W. P. Everts and S. F. Hooper as trustees under a real estate trust agreement and declaration of trust similar in terms to those under consideration in Williams v. Boston, 208 Mass. 497, 94 N. E. 808, and Ricker v. American Loan & Trust Co., 140 Mass. 346, 5 N. E. 284. The interest of the real owners was represented by certificates of fractional parts called shares. No value was given for this conveyance from Barlow through the conduit to the trustees, of whom Barlow was one, and all the shares were issued by the trustees to Barlow as payment for the land which he conveyed to them in trust. Barlow did not inform Roche, Everts and Hooper of his contract with Bisbee, and none of them had any knowledge of it. But of
course he knew about it himself.
Case Reserved from Supreme Judicial conveyance was not to an innocent purchasCourt, Suffolk County.
Suit by William A. Bisbee, prosecuted after his death by Harriet B. Bisbee, executrix, against Joseph A. Mackey and others, trustees. Cause reserved on bill, answer, and replication, and stipulation and agreement of facts for the consideration of the full court. Decree for complainant against defendants as trustees.
Richard W. Hale and John M. Maguire, both of Boston, for plaintiff. Wm. A. Quigley, of Boston, for defendants.
RUGG, C. J.  The plaintiff by this bill seeks to establish a trust for his benefit in lands now held by the defendants under a recorded declaration of trust. The material facts are these: In October, 1908, William A. Bisbee and Joseph E. Barlow entered into a written agreement for the purchase of land for their joint account. The plaintiff furnished $2,500, which appears to have been all the money put into the transaction at that time. The title was to be taken in the
er for value. It did not have the effect of extinguishing the equitable rights of Bisbee. No consideration was paid in fact. The contrivance of trustees, a declaration of trust and shares with the powers here vested in the shareholders constituted the association copartners. But treating those named as trustees as trustees in the strict sense they were under the circumstances here disclosed affected with the knowledge of Barlow. Short
ly after this conveyance Barlow wrote to Bisbee that he deeded the land in trust "with the understanding that one-half the profits when sold should go to you after refunding you the $2,500 that was due you." Knowledge of Barlow affected the trustees holding the property with the continuance of the trust in favor of Bisbee. Freeman v. Laing,  2 Ch. 355, 359.
 No change was wrought in this respect by the resignation of the three original trustees and the substitution of the present defendants. There was no new conveyance. They took the legal title, according to the
[Ed. Note.-For other cases, see Entry, Writ of, Dec. Dig. § 10.*]
2. COURTS (§ 483*)-JURISDICTION-TRANSFER
terms of the trust declaration, by selection [prior proceedings otherwise regularly taken and qualification. There was no new con- shall be valid. sideration. They took the same estate held by their predecessors charged with the same infirmities. The notice given to their predecessors in this regard affected them. It was not essential to the preservation of the rights of Bisbee that a new' notice should be given to each successive trustee as he came into the trust. Smith v. Smith, 2 Cromp. & Meeson, 231; Phipps v. Lovegrove, 16 Eq. 80; Ward v. Duncombe  A. C. 369. This is not an instance of an innocent purchaser for value relying upon the registry of deeds for his title. That principle is inapplicable to the circumstances of this case.
[4, 5] Those who have become purchasers of the shares from Barlow and their successors are not in the position of purchasers of real estate for value without notice. They can stand in no better position in this regard than the trustees. The evidence of interest in the trust being a certificate, which in form of transfer resembles personal property, purchasers for value do not stand on the same footing as purchasers of real estate by deed in reliance upon the record. It is subject in this regard to the infirmities of transfers of personal property. The statute of frauds is inapplicable to the facts here presented. The original agreement was in writing. The plaintiff's rights rest upon that and are sustained by it throughout.
There is nothing in the record to warrant a finding of laches on the part of the plaintiff. In accordance with the terms of the stipulation a decree may be entered ordering the defendant trustees to pay out of the trust, but not as individuals, the sum of $2,500, with interest at 6 per cent. from November, 1908, without costs.
(215 Mass. 76)
BROWNE v. BROWNE.
(Supreme Judicial Court of Massachusetts. Norfolk. May 27, 1913.)
1. ENTRY, WRIT OF (§ 10*)-JURISDICTION"WRIT OF ENTRY."
St. 1904, c. 448, provides that jurisdiction of writs of entry under Rev. Laws, c. 179, is transferred from the superior to the land court. Rev. Laws, c. 178, § 47, declares that a levy of execution on lands belonging to the debtor, the title standing fraudulently in the name of the tenant, shall be void, unless an "action to recover possession" is begun within a year from the return day of the execution. Held, that such an action, brought in 1909, was a "writ of entry" in the ordinary form, within chapter 179, and hence jurisdiction was in the land court, and not in the superior court, and the action, having been brought in the superior court, was properly transferred to the land court under St. 1911, c. 433, § 1, providing that, if an action has been brought in the superior court which should have been brought in the land court, it may be transferred and shall be subsequently prosecuted as if commenced therein, and all
St. 1911, c. 433, § 1, providing that, if an action has been brought in the superior court which should have been brought in the land court, the superior court may order the action transferred to the land court, and it shall thereupon be entered and prosecuted as if commenced therein, and all prior proceedings otherwise regularly taken shall thereafter be sued in time, but has mistaken the jurisdiction valid, is constitutional, since where plaintiff has of the tribunal to which he has appealed, no constitutional right is impaired by permitting that court to transfer it to a court having jurisdiction.
[Ed. Note. For other cases, see Courts, Cent. Dig. §§ 1288-1290, 1306; Dec. Dig. § 483.*] 3. COURTS (§ 488*)-TRANSFER OF CAUSE"PENDING CAUSE"-STATUTES.
St. 1911, c. 433, § 1, provides that, if an action is brought in the superior court which should have been brought in the land court the superior court may order it transferred, and it shall thereupon be entered and prosecuted as if commenced therein, and all prior proceedings otherwise regularly taken shall thereafter be valid. Held that, where a writ of entry was erroneously commenced in the superior court in 1909, the provision of the act of 1911 for a transfer requiring the subsequent been commenced in the land court fixed the procedure to be conducted as if the case had date of the writ for the ascertainment of the procedure to be followed in the land court, and hence the cause was subject to St. 1904, c. 448, enlarging the jurisdiction of the court of land | registration, etc., and, being a "pending cause,' was not subject to St. 1910, c. 560, prescribing the method of trial of cases originating in the land court and exempting pending causes.
[Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 1316-1323; Dec. Dig. § 488.*
For other definitions, see Words and Phrases, vol. 6, pp. 5276-5299; vol. 8, p. 7750.] 4. ENTRY, WRIT OF (§ 26*)-APPEAL FROM LAND COURT-JURY TRIAL.
Where a writ of entry was instituted in 1909, and transferred to the land court having jurisdiction, and triable according to the practice prescribed by St. 1904, c. 448, an appeal could be taken to the superior court for a jury trial on the facts only after a decision by the land court.
[Ed. Note.-For other cases, see Entry, Writ of, Cent. Dig. § 50; Dec. Dig. § 26.*]
5. ENTRY, WRIT OF (§ 26*)—APPEAL-MOTION TO HAVE ISSUES FRAMED-EFFECT.
Where, after trial of a writ of entry in the land court on the merits, the tenant merely filed a motion to have issues framed for trial by a jury in the superior court, such motion did not amount to a claim of appeal to the superior court by St. 1904, c. 448, § 8, and, no appeal having been taken, the motion properly denied.
[Ed. Note.-For other cases, see Entry, Writ of, Cent. Dig. § 50; Dec. Dig. § 26.*]
Exceptions and Appeal from Land Court, Norfolk County; C. T. Davis, Judge.
Action by Louis M. Browne against Maud F. Browne. Judgment for plaintiff, and defendant brings exceptions and appeals. Exfendant brings exceptions and appeals. ceptions overruled, and appeal dismissed.
Choate, Hall & Stewart, L. R. Chamberlin | his rights, but has mistaken the jurisdiction and Samuel Vaughan, all of Boston, for de- of the tribunal to which he has appealed, no mandant. John S. Richardson and J. M. constitutional right is impaired by permit Browne, both of Boston, for defendant.
ting the court in which the action wrongly was brought to transfer it to the one having power to adjudicate upon it.
RUGG, C. J.  This is a writ of entry brought in the superior court in 1909. There- [3, 4] The terms of the statute under which after that court ordered it transferred to the the transfer was made to the land court reland court under St. 1911, c. 433. The first quired the procedure to be "as if it had question is: Which court has jurisdiction? been commenced therein." This fixes the This depends upon the construction of St. date of the writ for the ascertainment of the 1904, c. 448, to the effect that the jurisdic-procedure to be followed in the land court. tion of "writs of entry, under the provisions Hence, this writ having been brought in 1909, of chapter 179" of Rev. Laws, is transferred St. 1904, c. 448, governs, and not St. 1910, from the superior to the land court. It ap- c. 560 which in section 8 exempts "pendpears from the record that the demandant's ing causes" from its operation. The case at title rests upon the levy of an execution on bar was "pending" in 1910. Under St. 1904, lands belonging to one Merrill H. Browne, c. 448, § 8, it is only after a decision by the record title of which stood fraudulently the land court of all issues raised that apin the name of the tenant. R. L. c. 178, § peal can be taken to the superior court for a 47, enacts that in such case the levy shall jury trial on the facts. This was pointed be void unless an "action to recover posses- out in the memorandum of the judge of the sion" of the land is begun within one year land court filed in this case on January 19, from the return day of the execution. Such 1912. "action" is a writ of entry in the ordinary form. Clark v. Chamberlain, 13 Allen, 257, 260. It plainly is within the terms of R. L. c. 179. Therefore jurisdiction of the action was in the land court and not in the superior court at the time it was brought. Congregational Society v. Metcalf, 193 Mass. 288, 79 N. E. 343.
It was properly transferred to the land court under St. 1911, c. 433, section 1 of which provides that, "if an action has been brought in the superior court which ought to have been brought in the land court, the court may order the action * transferred to the [land court] ; and it shall thereupon be entered and prosecuted as if it had been commenced therein, and all prior proceedings otherwise regularly taken shall thereafter be valid." This relates merely to procedure. It is in furtherance of a policy frequently exemplified in legislative acts to enable a party who has brought a,cause seasonably to try it upon its merits, notwithstanding defects in the form or substance of pleadings, or error in the remedy asked, or mistake in the tribunal invoked, rather than to compel him to begin it anew. George v. Reed, 101 Mass. 378.
 After the decision of the land court, the tenant did not appeal to the superior court and enter his appeal there, but merely filed a motion on August 15 to have issues for a jury framed, which was not presented to the court until November 5, 1912. This did not amount to a claim of an appeal under St. 1904, c. 448, § 8. Weeks v. Brooks, 205 Mass. 458, 92 N. E. 45. Mead v. Cutler, 194 Mass. 277, 80 N. E. 496, is plainly distinguishable in respect of the conduct of the appealing party. The motion for framing issues is a subsidiary subject, depending for its validity upon an appeal. The motion was properly denied, inasmuch as the tenant had failed to take any appeal. No error is disclosed upon the report. What has been said disposes of all the numerous pleas, appeals, and exceptions of the tenant, or renders them immaterial.
(215 Mass. 171) CALLAHAN v. BOSTON ELEVATED RY. CO.
(Supreme Judicial Court of Massachusetts. Suffolk. June 3, 1913.)
In an action against a carrier for injuries received by a passenger in attempting to alight, municipal ordinances and regulations tending to show that the act of the carrier's servant complained of was required by competent authority, and so was not in itself negligent, are admissible.
 The statute at bar is well within principles established by this court, and is con- 1. CARRIERS (§ 317*)-CARRIAGE OF PASSENstitutional. Wilson v. Head, 184 Mass. 515, 69 N. E. 317; Rogers v. Nichols, 186 Mass. 440, 71 N. E. 950; Converse v. Ayer, 197 Mass. 443, and cases cited at 454, 84 N. E. 98; Adams v. Adams, 211 Mass. 198, 97 N. E. 982; Ewell v. Daggs, 108 U. S. 143, 2 Sup. Ct. 408, 27 L. Ed. 682. It falls far short of some statutes which have been held valid, although they have been thought to go to the verge. See, for example, Dunbar v. 2. EVIDENCE (§ 116*)-ADMISSIBILITY-RELBoston & Prov. R. R., 181 Mass. 383, 63 N. In an action against a carrier for personE. 916. Where a plaintiff has not slept upon al injuries sustained by plaintiff in attempting
[Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1295, 1297-1305; Dec. Dig. & 317.*]
to alight from its vehicle, it is proper to allow | rule declared in Stevens v. Boston Elev. Ry., the carrier's representative to explain that the 184 Mass. 476, 69 N. E. 338, and Horsman v. reason he did not summon certain persons Brockton & Plymouth St. Ry., 205 Mass. 519, whose names were taken by the conductor was that he had ascertained they knew nothing 91 N. E. 897. about the accident, because tending to rebut an inference of suppression of evidence.
[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 134, 135; Dec. Dig. § 116.*] 3. TRIAL (§ 203*)-INSTRUCTIONS-THEORY.
In an action against a street car company for injuries sustained by plaintiff in alighting from its vehicle, he is entitled to have his theory of the cause of the accident submitted to the jury, though based only upon his own testimony, which was improbable.
 2. The witness Carney was allowed to testify that the reason he had not caused certain persons whose names had been taken by the defendant's conductor to be summoned as witnesses was that he had learned that they said they knew nothing about the occurrence. This was correct. The testimony did not tend to show, and was not admitted to show, that those persons in fact had no such knowledge. It tended to show the reason why Car
[Ed. Note. For other cases, see Trial, Cent. ney had not procured their attendance; and Dig. §§ 477-479; Dec. Dig. § 203.*]
4. APPEAL AND ERROR (§ 1067*)-ACTIONSINSTRUCTIONS.
In an action against a street car company for injuries sustained by plaintiff, who claimed that the car came to a stop to allow him to alight, and, while he was preparing to do so, started with a sudden and violent jerk, throwing him to the ground, where the court did not submit his theory of the accident to the jury, but upon objection by plaintiff's counsel stated that if the car came to a stop where it was expected and intended to stop and let off passengers, and before plaintiff had time to alight it suddenly started, the company would be liable, that statement, though not intended as part of the charge, is sufficient to cure the defect, where made in the presence of the jury and understood by them to be for their guid
[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 4229; Dec. Dig. § 1067.*] 5. APPEAL AND ERROR (§ 1032*)-EXCEPTIONS
The burden being on the excepting party to make it manifest that he has been aggrieved, an exception to the failure of the court to charge in the present instance does not show error; it appearing that the statement was taken' down by the stenographer, and there being nothing in the record to show that it was not made in the presence of the jury.
[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 4047-4051; Dec. Dig. 1032.*]
Exceptions from Superior Court, Suffolk County; William Cushing Wait, Judge.
the jury could find that it was a good one. If so, it answered the claim which otherwise might have been made that the evidence was suppressed because it would have For this been unfavorable to the defendant. purpose it was competent to show Carney's belief and the reasons therefor. Com. v. Goldberg, 212 Mass. 88, 91, 98 N. E. 692; Rumrill v. Ash, 169 Mass. 341, 347, 47 N. E. 1017; Com. v. Costello, 119 Mass. 214.
 3. The plaintiff had reason to complain of the judge's charge as not covering the issues raised by the plaintiff's contention. That contention was that after the conductor's failure to cause the car to be stopped
in accordance with the plaintiff's request, he
went to the rear platform and complained to the conductor; that the conductor then gave the signal to stop the car at the next stopping place; that the plaintiff in preparation for alighting put his foot upon the step, having with his hand a tight hold on the guard or hand rail, ready to alight as soon as the car should have stopped; that the car slowed up and either stopped or came nearly to a full stop, at the regular stopping place; but that then the conductor gave the signal to start the car, it started with a sudden jerk, and threw the plaintiff off. This contention might seem improbable; but it was supported by the plaintiff's testimony, and he had a right to have the jury pass upon it. Upon the omission to charge the jury with reference thereto, he had a right to call the
Action by Thomas Callahan against the Boston Elevated Railway Company. There was a verdict for defendant, and plaintiff ex-judge's attention to the matter and to save
cepted. Exceptions overruled.
Chas. Toye and Jos. L. Keogh, both of Boston, for plaintiff. Fredk. Manley Ives, of Boston, for defendant.
SHELDON, J.  1. The ordinances and regulations were properly admitted. They tended to show that the act of the defendant's servants which was complained of was required by competent authority, and so was not in itself negligent. Maisels v. Dry Dock, East Broadway & Battery St. Rd., 16 App. Div. 391, 45 N. Y. Supp. 4; Stiasny v. Metropolitan St. Ry., 58 App. Div. 172, 68 N. Y. Supp. 694, affirmed in 172 N. Y. 656, 65 N. E. 1122. This is the converse of the
any exception that he might desire. There bench; and the judge said, "If that car came upon a colloquy took place at the judge's to a stop at the post on the other side of the street, where the car was expected to stop, intended to stop, to let off passengers, and, before the plaintiff had time to get off, the car was suddenly started up and he was thrown, the defendant would be liable."
 If this was said to the jury, or even merely in their hearing but that so they understood it to be the rule which they must follow if they found the facts to be as the plaintiff claimed, any prior defect in the charge was cured, the plaintiff had his full rights, and he has now no ground of excep
tion. If it was not given to the jury for! their guidance, the plaintiff's exceptions must be sustained.
 The burden is always upon the excepting party to make it manifest that he has been aggrieved. Whatever is necessary to show this must be averred. Richardson v. Smith, 9 Gray, 315. As the plaintiff was not aggrieved if this language of the judge was addressed to the jury, it was for him to show that this was not so. His bill of exceptions says that it was at the close of the charge, presumably in the presence and hearing of the jury. It seems to have been taken down by the stenographer, which would tend to indicate that it was not a conversation apart, but part of the public proceedings of the trial. That it was said in a colloquy at the judge's bench does not indicate that it was not addressed to the jury. If it were not so addressed, that would naturally have been stated in the exceptions. It is of some significance that a statement that it was not in the hearing of the jury was at first made in the exceptions, and has since been stricken out by amendment, and the matter left wholly undetermined. Moreover, the language of the judge is such as he naturally would have addressed to the jury rather than merely to counsel upon the matter being brought to his attention.
On the whole, it does not appear that as the case finally was left to the jury, the plaintiff has any right of exception to the charge. Exceptions overruled.
(215 Mass. 24)
CUTTER v. CUTTER et al. (Supreme Judicial Court of Massachusetts. Middlesex. May 24, 1913.) PARTITION (§ 116*)-PROPERTY PARTITIONED -ESTOPPEL.
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 alia 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 thrity [sic] 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 and 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 with
Where the survivor of three sons, who as partners had erected a building constituting personalty on the parent's farm, brought partition of the land on the parent's death, and made no suggestion that the building was personalty, though present at the hearing of the commissioners discussing the value of the buildings, and apportioning to another the land on which the building was situated, he was estop-out serious or irreparable injury to the esped from removing the building as personalty. [Ed. Note.-For other cases, see Partition, Cent. Dig. §§ 315, 450-453; Dec. Dig. § 116.*] Appeal from Superior Court, Middlesex County; John H. Hardy, Judge.
Suit by Waldo R. Cutter against Edward H. Cutter and another. From a decree for plaintiff, defendants appeal. Affirmed.
Joseph Cummings, of Boston, for appellants. Wm. R. Buckminster and Arthur J. Wellington, both of Boston, for appellee.
LORING, J. This is a bill 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.
tate, 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 this 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