Slike stranica

v. Lowell, 5 Metc. 35; Hadsell v. Hancock, 3 Gray, 526. Reynolds v. Salem, 6 Metc. 345; Sutton v. Cole, 3 Pick. 242; Davis v. Mason, 4 Pick. 156.

MORTON, C. J. The demand title is derived from Henry Coffin. To show his title, they put in evidence a vote of the proprietors of the common and undivided lands of the island of Nantucket, passed January 25, 1886. It is not disputed that such proprietors might grant land by a vote instead of a deed. See Mitchell v. Starbuck, 10 Mass. 5; Folger v. Mitchell, 3 Pick. 396; Springfield v. Miller, 12 Mass. 415. But the tenant contends that the vote on which the demandant relies was invalid, because it did not follow and conform to the call or warrant for the meeting at which it was passed.

The petition of Henry Coffin asks the proprietors "to set off to him all the common land to the eastward of Siasconset village and Sun-set heights, and in front of 'Sconset village." In the call for the meeting the proprietors are notified that the purposes of the meeting are-First, to choose a moderator; and, "second, to act upon the petition of Henry Coffin for land to be set off to him near Siasconset." At the meeting, as appears by the record, "under the second article of the warrant, it was voted that the petition of Henry Coffin for land near Siasconset be granted." Thereupon "the lot-layers presented returns and map pertaining to the land to be set off to Henry Coffin," the substantial part of which is as follows: "Pursuant to a vote of proprietors of the common and undivided lands of the island of Nantucket, we have this day set off in severalty to Henry Coffin all the common and undivided land in and near the village of Siasconset, whether at, over, or below the bank, contained and included within the lines of the map or plan herewith presented." plan bounds the lot set off to Coffin, south-easterly the ocean, north-easterly and north-westerly by lots previously set off to other persons; and south-westerly by a line defined by metes and bounds, as well as by courses and distances. The record then proceeds as follows: "And it was voted that the returns and map of the lot-layers be accepted." As we have said, this amounted to a grant of the land described in the plan to Coffin, if the meeting was authorized to pass these votes under the warrant or call. It was admitted at the trial, that the base or northerly "line of the lay-out passed through the eastern part of the village of Siasconset;" and thereupon the court, at the request of the tenant, ruled that the "lay-out to said Henry Coffin was invalid, because the lay-out exceeded, by its terms, the land described in the petition and call." We are of opinion that this ruling was erroneous.


Such proprietors of common and undivided lands are a quasi corporation or body politic. The calls for meetings are analogous to warrants for town meetings, and are to be governed by the same rules. In regard to the meetings of such proprietors, as in regard to town meetings, our laws, from the earliest period, have provided that the warrants or notifications must state the purposes of the meeting, and that no business can be transacted unless stated therein. Thus the statute of 1713 provided that "no other affairs shall be transacted at any meeting of the proprietors than what is expressed in the warrant or notification for such meeting." 1 Acts and Resolves of Provinces, 704. The statute of 1783, (chapter 39, § 1,) contained the same provisions. Substantially the same provision has been re-enacted in all the subsequent revisions of the statutes. Rev. St. c. 43, § 5; Gen. St. c. 67, § 11; Pub. St. c. 111, § 11. It has been repeatedly held that town warrants should be construed liberally, and that a meeting might legally act upon any subject of which the warrant gives substantial and intelligent notice to the voters. Warrants are held sufficient if they indicate with substantial certainty the nature of the business to be acted on. Haven v. Lowell, 5 Metc. 35; Wood v. Jewell, 130 Mass. 270; Matthews v. Westborough, 131 Mass. § 521.

We think that some rule should be applied to notifications of the meetings of proprietors of common and undivided lands. They must state the affair

or business which is to come before the meeting, and, from the nature of the case, they must be general, and cannot state in detail the action which the proprietors may take upon the subject expressed in them. In the case before us the proprietors were notified that the meeting was "to act upon the petition of Henry Coffin for land to be set off to him near Siasconset." The notification does not purport to give the boundaries of the land which it is proposed to convey to Coffin. It is a general notice of the affair or business which is to come before the meeting, and the details of action and the boundaries of the land are necessarily left to be decided by the meeting. There is nothing in the case to show Siasconset has any legal, defined boundary. It is a part of Nantucket, and there is no certain, ascertained line which separates it from the lands southerly of it, and between it and the ocean. It seems to us that the ruling was based upon too narrow a construction of the call, and that the grant to Coffin, which the meeting made, was fairly within the scope of the business of which the proprietors were notified by the warrant or call. Exceptions sustained.

(143 Mass. 72)


(Supreme Judicial Court of Massachusetts. Worcester. November 24, 1886.) PLEADING-CONTRACT-DECLARATION-MORTGAGE TRUST.

An action of contract, to enforce a trust contained in a mortgage, against a purchaser at the sale under the power contained in the mortgage, cannot be maintained where the special allegations in the declaration are obscure and inconsistent, and do not clearly show whether the defendant was a purchaser at the sale under the power, or an assignee of the mortgagee, the sale having been abandoned.

This was an action of contract. At the trial in the superior court, before BACON, J., the pleadings were read, and the case opened by the plaintiff's attorney, whereupon the presiding justice, at the request of the defendant, ruled that the plaintiff could not recover upon the pleadings as they then stood; and, the plaintiff having declined to amend his declaration, the court ordered a verdict for the defendant, and the plaintiff alleged exceptions. The declaration was as follows: "And the plaintiff says that on the twenty-ninth day of August, A. D. 1873, she became the owner of certain real estate situate in Milford, in said county, bounded and described in the deed of that date from John J. Callenna to her, recorded in the registry of deeds, B. 905, p. 470; and on the tenth day of April, A. D. 1874, she executed a mortgage deed, with power of sale,-her husband, Edward Walpole, joining therein,to George H. Ball, trustee, subject to a mortgage to Sarah G. Allen, and a mortgage to Horace Wood, of said premises, for the security of the payment of $305, and upon the trust therein expressed, and hereinafter stated in B. 924, p. 300. On the fifth day of January, A. D. 1875, said Ball offered said premises for sale at auction, in pursuance of said power, and the defendant then and there bid for said equity of redemption of said premises, so conveyed as aforesaid to said Ball, the sum of $1,625, and the same was then and there struck off to the defendant for said price. The record thereof is in B. 946, p. 311. And on said fifth day of January, A. D. 1875, said Ball, trustee as aforesaid, executed and delivered a deed of assignment of said trust mortgage deed, and the premises therein described, to said defendant, who then and there accepted the same, and became charged with the trusts therein contained; the record whereof is in B. 946, p. 314. And on said fifth day of January, A. D. 1875, the defendant took possession of said premises, and has used and occupied the same; and had the rents and profits thereof thence to the present time. And on said fifth day of January, A. D. 1875, the defendant applied, in part payment of said sum of $1,625, the amount due him upon the said deed of assignment, to-wit, $305, leaving the balance of $1,320 unpaid and due upon the defendant's said bid at auction; the same then and

there being the property of the plaintiff. And the defendant has held in
trust, for the use and benefit of the plaintiff, said balance, and the said real
estate to the extent of said balance, from said fifth day of January, A. D. 1875,
to the present time. And the defendant is chargeable with said balance, and
the reasonable interest and annual income and accumulations thereon. and in
the use of said real estate, from said fifth day of January, A. D. 1875, to the
present time. And the plaintiff has requested payment of the annual income
thereof, and of the amount due upon said trust of the defendant, but the de-
fendant has neglected to comply with the plaintiff's requests, etc.; followed by
the general counts for money had and received.

S. A. Burgess, for plaintiff.

Acceptance of the assignment of the mortgage, and the entry upon, and act-
ual possession of, the premises, bind the defendant as mortgagee and trustee of
the real estate for the use of the plaintiff, the mortgagor. Smith v. Burgess,
133 Mass. 511, 513; Wadsworth v. Williams, 100 Mass. 131; Carlton v. Jack-
son, 121 Mass. 596; 1 Hil. Mortg. (4th Ed.) 385, 386, 439, 440, 444, 446, 473; 2
Washb. Real Prop. (3d Ed,) 116, 117, 122, 123; Young v. Miller, 6 Gray, 152,
154, 156; Bacon v. McIntire, 8 Metc. 87; Vinton v. King, 4 Allen, 562. De-
fendant stands in place of mortgagee in possession of real estate without fore-
closure, and is bound to account to the plaintiff for the rents and profits of the
estate. Donohue v. Chase, 130 Mass. 137; Dearnaley v. Chase, 136 Mass. 189,
290. See McCabe v. Swap, 14 Allen, 188, 193; Kneeland v. Moore, 138 Mass.
198, 199. The defendant is bound to pay the plaintiff the value of her interest
in said real estate. Kneil v. Egleston, 140 Mass. 204; S. C. 4 N. E. Rep. 573;
Derome v. Vose, 140 Mass. 575, 578; S. C. 5 N. E. Rep. 478; Johnson v.
Johnson, 120 Mass. 465; Gould v. Emerson, 99 Mass. 155, 157. Plaintiff can
recover upon the promise of the defendant, by reason of his bid of $1,625 for
interest in the estate. 2 Chit. Pl. (16th Amer. Ed.) 27, 32, 532. Plaintiff
can recover for money had and received by the defendant to the plaintiff's
use: Ordway v. Colcord, 14 Allen, 59; Donohue v. Chase, 139 Mass. 407-
410; S. C. 2 N. E. Rep. 84. See Claflin v. Godfrey, 21 Pick. 6, 15; Wood v.
Felton, 9 Pick. 171, 174; Pub. St. c. 181, § 43.

The allegations of the special count may be used in support of the general
count. Cutter v. Demmon, 111 Mass. 479; 1 Chit. Pl. (16th Amer. Ed.) 247,
249, 363, 365; Read v. Smith, 1 Allen, 520; Tapley v. Forbes, 2 Allen, 23;
Dorr v. McKinney, 9 Allen, 361; Randall v. Rich, 11 Mass. 494; Chenery v.
Goodrich, 98 Mass. 228; Brettun v. Anthony, 103 Mass. 40. Plaintiff may
also recover for breach of trust by defendant. Peabody v. Tarbell, 2 Cush.
227, 231; Pierce v. Colcord, 113 Mass. 374, 375. The promise of the mort-
gagee contained in the mortgage binds the defendant, as assignee of the mort-
gage, to pay the "surplus" in his hands of the assignment to the mortgagor,
the plaintiff. Bryant v. Damon, 6 Gray, 564, 567; Cutler v. Haven, 8 Pick.
490; Hunt v. Maynard, 6 Pick. 489; Maynard v. Hunt, 5 Pick. 240; Fay v.
Cheney, 14 Pick. 399; Wade v. Howard, 11 Pick. 289; Burnett v. Pratt, 22
Pick. 556; Parker v. Barker, 2 Metc. 423; Currier v. Gale, 9 Allen, 522; Pike
v. Goodnow, 12 Allen, 472; 2 Washb. Real Prop. (3d Ed.) 118-125; Id. c. 16,
§ 2, art. 6, p. 75.

Imperfections in pleading must be objected to by demurrer. Capron v.
Anness, 136 Mass. 271, 272; Tapley v. Goodsell, 122 Mass. 176, 181; Chace v.
Sherman, 119 Mass. 387, 391; Huntress v. Burbank, 111 Mass. 213, 216; Eddy
v. Chace, 140 Mass. 471; S. C. 5 N. E. Rep. 306; 1 Chit. Pl. (16th Amer. Ed.)
248; Knapp v. Slocomb, 9 Gray, 74. See Hall v. Marston, 17 Mass. 574,
579; Emerson v. Baylies, 19 Pick. 55, 60; Appleton v. Bancroft, 10 Metc.
231; Stevens v. Fitch, 11 Metc. 248, 250; Com. v. Dracut, 8 Gray, 455,
458. Matter in avoidance of a debtor's claim must be alleged by the defendant
as in "former recovery," "judgment," and the like. Marvin v. Mandell, 125
Mass. 563; Caverly v. McOwen, 123 Mass. 577; 1 Chit. Pl. (16th Amer. Ed.)

352, 220, 221, 570; 1 Chit. Pl. 225, 243. See Price v. Weaver, 13 Gray, 272; Elliott v. Jenness, 111 Mass. 29; Knowlton v. Ackley, 8 Cush. 97; Tapley v. Forbes, 2 Allen, 23, 24; Cushman v. Davis, 3 Allen, 99, 100; O'Neal v. Kittredge, 3 Allen, 470; Marvin v. Mandell, 125 Mass. 563.

T. G. Kent and G. T. Dewey, for defendant.

HOLMES, J. Both parties agree that the only question is whether the special allegations of the declaration entitle the plaintiff to recover. If the allegation of a sale to the defendant under the power in the mortgage, coupled with the averment that "the record thereof is in B. 946, p. 311," standing alone, could be construed as an informal allegation that the sale was perfected by conveyance, the plaintiff would have no claim against the defendant for the price, because she was a stranger to the defendant's contract. She would have no claim against him in respect of rents and profits subsequently received, because those would belong to the defendant. But the allegations mentioned are followed by specific averments that the mortgage was assigned on the day of the foreclosure sale, and that the defendant "became charged with the trusts therein contained," whatever they may have been. This suggests that, instead of carrying out the sale, the parties substituted an assignment of the mortgage, and this seems to be the view taken by the plaintiff's counsel in his argument. But in that case the price bid at the auction would not have been due; and, if the price was not due, the defendant has not received the amount of the mortgage debt, so far as appears, and is not accountable for the rents and profits which he has received, otherwise than upon a bill to redeem.

It would rather seem, however, that the declaration was intended to set up both a completed sale to the defendant under the power, and a subsequent assignment to him of the mortgage, a satisfaction of the mortgage debt by applying it on the sum due from the defendant as purchaser under the power, and a double claim against him for the balance due after the sale, and also for the rent and profits received by him; the latter claim treating him as a person claiming under the mortgage who has received more than is due upon the mortgage. Pub. St. c. 181, § 43. Supposing this to have been what the pleader intended to aver, the objections to the declaration are not less obvious than those already stated. If the sale was completed, the mortgage was extinguished, and the acceptance of a formal assignment of it by the defendant would not cut down his right to the rents and profits, which had become absolute as against the plaintiff, the mortgagor, by the mortgagee's conveyance under the power of sale. So the bare forms of assignment of an extinct mortgage, without more, would not make the defendant liable to an action by the plaintiff for the sum due on the purchase under the power. The defendant's contract with the mortgagee would remain in force, and would still be the only source of his obligations. In thus dealing with the substantive questions raised or suggested, we do not mean to imply that the ruling of the court was not sufficiently justified by the obscurity and inconsistency of the declaration. Exceptions overruled.

(143 Mass. 100)


(Supreme Judicial Court of Massachusetts. Bristol. November 24, 1886.) 1. BIGAMY-POLYGAMY-EVIDENCE OF ALLEGED FIRST WIFE.

Upon an indictment charging the defendant with polygamy, the alleged first wife having testified that she was married to the defendant, it is competent, for the purpose of contradicting her testimony, to introduce evidence tending to show the character of her associates on an occasion during the time when she was living with the defendant, when, upon being remonstrated with by defendant's sister for leaving home very late at night in company with a man and woman, and being

asked to come back, she replied: "I will not; I have a right to do as I have a mind to,"-such an expression by the alleged wife being in itself ambiguous, and capable of having any one of various shades of meaning.


Upon the trial of an indictment charging the defendant with polygamy, the alleged first wife having testified to a marriage between herself and the defendant, evidence of lewd conduct on her part is not admissible to contradict her testimony as to the marriage.

This was an indictment for polygamy, charging that the defendant, Samuel P. Lee, on August 19, 1886, at Attleborough, in the county of Bristol, feloniously and unlawfully did marry and take to wife one Nettie I. Rollins; the said Lee being then and there a married man, and the lawful husband of one Clara B. Power, to whom he was married November 8, 1881, and who was then living.

At the trial in the superior court before THOMPSON, J., to prove the fact of marriage in New York, November 8, 1881, as alleged, the government produced as a witness Clara B. Lee, the alleged wife, who testified that she and the defendant left Attleborough on November 7, 1881, and went by rail to Boston; that late in the evening they took the cars from Boston, and, going through Providence, arrived at New York in the morning, and went to a clergyman, and were lawfully married; that they remained there until about noon on the same day, when they returned to Boston, and boarded in that city, and in Attleborough, living together as husband and wife, and reputed 'to be such until June 16, 1886, when she left him. The defendant, as a witness, denied that they ever went to New York, or that any marriage was ever solemnized. The principal issue was whether the parties were married in New York, as testified to by Clara. To rebut her evidence the defendant put in evidence several declarations made by her; that after the alleged marriage, upon being remonstrated with for supposed immodest or improper conduct in going to ride and being out late at night with other men than her husband, she had said: "I have a right to do as I please." The brother of the defendant asked her if she thought her conduct was becoming a married woman. She answered: "I have a right to do as I please. You cannot prove our marriage." A sister of the defendant testified that the defendant and the said Clara lived together in the same house with her during the spring of 1883; that said Clara was in the habit of being out late nights; that about 1 o'clock in the morning of Sunday, April 30th, she heard voices near the house; that she raised the window, and saw Clara walking and talking with a man named Titus, and another woman accompanying them; that she called to her and said: "Clara, come back into the house, where you belong;" that she answered: "I will not; I have a right to do as I have a mind to;" that she went away with this man and woman, and did not return during the night. The defendant's counsel then asked her (the sister) what was the character or reputation of the woman who was with her and Titus. This was objected to. Defendant's counsel stated that he offered the evidence, in connection with the conversation, as tending to show that she did not consider herself under marital obligations, and in that view he proposed to show that her associate then was a lewd woman. The evidence was excluded by the court, as also evidence offered by defendant tending to show that said Clara then, and at other times during said cohabitation, associated with lewd persons. A verdict of guilty was returned, and the defendant alleged exceptions.

J. Brown and G. A. Adams, for defendant, cited Lund v Tyngsborough, 9 Cush. 41, 45; Haynes v. Rutter, 24 Pick. 243; Sherman v. Wilder, 106 Mass. 538; Com. v. Hackett, 2 Allen, 140; Com. v. Rowe, 105 Mass. 591; Johnson v. Sherwin, 3 Gray, 374; 1 Greenl. Ev. 108.

E. J. Sherman, Atty. Gen., for the Commonwealth.

The character of the associates of the first wife of the defendant, in an indictment against him for polygamy, cannot be material upon the fact of their

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