Slike stranica

contract with the third persons, and none of name of Barlow, who was to have the active them had any actual knowledge of it. Held, management of the venture and sell the that the conveyance to the trustees was not a conveyance to an innocent purchaser for value, estate for the benefit of both. The plaintiff and the trustees held the property subject to

was to have one-half interest, subject to certhe trust in favor of the third person.

tain deductions for expenses, and the net [Ed. Note.-For other cases, see Trusts, proceeds were first to be applied to the reCent. Dig. $$ 539-552; Dec. Dig. $ 357.*]

payment with interest of the $2,500 furnish3. TRUSTS (8 243*)—EXPRESS TRUSTS-AGREE-ed by the plaintiff. By subsequent written


Where trustees under a real estate trust agreement another tract of land was substiagreement and declaration of trust resigned and tuted for the one first described. These others were appointed, the latter trustees took agreements were never recorded. It is plain the legal title subject to the terms of the trust declaration, and subject to a trust in fa- | upon familiar principles that the transactions vor of a third person enforceable against the up to this point raised a trust in favor of original trustees, though notice was not given Bisbee, and Barlow held the title charged to the new trustees.

with the fiduciary duty to carry out the [Ed. Note.-For_other cases, see Trusts, terms of the agreement. Baylies v. Payson, Cent. Dig. $ 350; Dec. Dig. $ 243.*]

5 Allen, 473, 488. 4. TRUSTS ( 357*)-EXPRESS TRUSTS-A GREE

[2] Barlow failed in essential particulars MENTS-TITLE.

Where the interest of the real owners of to perform his part of the contract. In 1909 real estate conveyed to trustees under a realhe conveyed this tract of land, together with estate trust agreement and declaration of trust others standing in his name, to one Roche, was represented by certificates of fractional parts, called shares, the purchasers of the who was a mere conduit of title, and who in shares from the trustees and their successors turn at the same time conveyed it to Barwere not in the position of purchasers of real low, W. P. Everts and S. F. Hooper as trusestate for value without notice, and their title tees under a real estate trust agreement and was subject to the infirmities of transfers of declaration of trust similar in terms to those personal property.

[Ed. Note. For other cases, see Trusts, under consideration in Williams v. Boston, Cent. Dig. & 539-552; Dec. Dig. $ 357.*] 208 Mass. 497, 94 N. E. 808, and Ricker v. 5. FRAUDS, STATUTE OF (8 131*) TRUST American Loan & Trust Co., 140 Mass. 346, 5 AGREEMENTS.

N. E. 284. The interest of the real owners Where plaintiff and defendant agreed in writing to purchase real estate for their joint was represented by certificates of fractional account for resale for a division of the pro- parts called shares. No value was given ceeds after the repayment to plaintiff of the for this conveyance from Barlow through the money advanced by him, and where the parties conduit to the trustees, of whom Barlow was by subsequent written agreement substituted another tract for the one first acquired, the one, and all the shares were issued by the legal title to which was taken in the name of trustees to Barlow as payment for the land defendant, the rights of plaintiff rested on which he conveyed to them in trust. Barlow agreements in writing not affected by the stat did not inform Roche, Everts and Hooper ute of frauds. [Ed. Note. For other cases. Frauds,

of his contract with Bisbee, and none of Statute of, Cent. Dig. $$ 283, 284; Dec. Dig. them had any knowledge of it. But of f 131.*]

course he knew about it himself. Such a Case Reserved from Supreme Judicial conveyance was not to an innocent purchasCourt, Suffolk County.

er for value. It did not have the effect of

. Suit by William A. Bisbee, prosecuted aft- extinguishing the equitable rights of Bisbee. er his death by Harriet B. Bisbee, executrix, No consideration was paid in fact. The conagainst Joseph A. Mackey and others, trus- trivance of trustees, a declaration of trust and tees. Cause reserved on bill, answer, and shares with the powers here vested in the replication, and stipulation and agreement shareholders constituted the association coof facts for the consideration of the full partners. But treating those named as truscourt. Decree for complainant against de- tees as trustees in the strict sense they were fendants as trustees.

under the circumstances here disclosed afRichard W. Hale and John M. Maguire, fected with the knowledge of Barlow. Shortboth of Boston, for plaintiff. Wm. A. Quig-Bisbee that he deeded the land in trust

ly after this conveyance' Barlow wrote to ley, of Boston, for defendants.

“with the understanding that one-half the RUGG, C. J. [1] The plaintiff by this bill profits when sold should go to you after reseeks to establish a trust for his benefit in funding you the $2,500 that was due you." lands now held by the defendants under a | Knowledge of Barlow affected the trustees recorded declaration of trust. The material holding the property with the continuance lacts are these : In October, 1908, William of the trust in favor of Bisbee. Freeman v. A. Bisbee and Joseph E. Barlow entered into Laing, [1899] 2 Ch. 355, 359. a wiitten agreement for the purchase of land [3] No change was wrought in this respect for their joint account. The plaintiff fur-by the resignation of the three original trusnished $2,500, which appears to have been tees and the substitution of the present deall the money put into the transaction at fendants. There was no new conveyance. that time. The title was to be taken in the They took the legal title, according to the


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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

[Ed. Note. For other cases, see Entry, Writ by their predecessors charged with the same of, Dec. Dig. § 10.*] infirmities. The notice given to their prede-2. COURTS (8 483*)—JURISDICTION-TRANSFER

OF CAUSES-STATUTES-VALIDITY. cessors in this regard affected them. It was

St. 1911, c. 433, § 1, providing that, if an not essential to the preservation of the rights action has been brought in the superior court of Bisbee that a new' notice should be given which should have been brought in the land to each successive trustee as he came into court, the superior court may order the action

transferred to the land court, and it shall the trust. Smith v. Smith, 2 Cromp. & Mee- thereupon be entered and prosecuted as if son, 231; Phipps v. Lovegrove, 16 Eq. 80; 1 commenced therein, and all prior proceedings Ward v. Duncombe [1893] A. C. 369. This otherwise regularly taken shall thereafter be is not an instance of an innocent purchaser sued'in time, but has mistaken the jurisdiction

valid, is constitutional, since where plaintiff has for value relying upon the registry of deeds of the tribunal to which he has appealed, no for his title. That principle is inapplicable constitutional right is impaired by permitting to the circumstances of this case.

that court to transfer it to a court having ju

risdiction. [4, 5] Those who have become purchasers of the shares from Barlow and their succes- Dig. $$ 1288-1290, 1306; Dec. Dig. $ 483.*]

[Ed. Note.—For other cases, see Courts, Cent. sors are not in the position of purchasers of

3. COURTS (8 488*)-TRANSFER OF CAUSEreal estate for value without notice. They

PENDING CAUSE"-STATUTES. can stand in no better position in this re- St. 1911, c. 433, § 1, provides that, if an gard than the trustees. The evidence of in- action is brought in the superior court which terest in the trust being a certificate, which should have been brought in the land court

the superior court may order it transferred, in form of transfer resembles personal prop- and it shall thereupon be entered and prosecuterty, purchasers for value do not stand on ed as if commenced therein, and all prior prothe same footing as purchasers of real estate ceedings otherwise regularly taken shall there

after be valid. Held that, where a writ of by deed in reliance upon the record. It is entry was erroneously commenced in the susubject in this regard to the infirmities of perior court in 1909, the provision of the act of transfers of personal property. The statute 1911 for a transfer requiring the subsequent of frauds is inapplicable to the facts here procedure to be conducted as if the case had

been commenced in the land court fixed the présented. The original agreement was in date of the writ for the ascertainment of the writing. The plaintiff's rights rest upon that procedure to be followed in the land court, and and are sustained by it throughout.

hence the cause was subject to St. 1904, c. 448,

enlarging the jurisdiction of the court of land There is nothing in the record to warrant registration, etc., and, being a "pending cause, a finding of laches on the part of the plain- was not subject to St. 1910, c. 560, prescribing tiff. In accordance with the terms of the the method of trial of cases originating in the

land court and exempting pending causes. stipulation a decree may be entered ordering the defendant trustees to pay out of the Dig. $$ 1316-1323; Dec. Dig. f 488.*

[Ed. Note.-For other cases, see Courts, Cent. trust, but not as individuals, the sum of For other definitions, see Words and Phrases, $2,500, with interest at 6 per cent. from No- vol. 6, pp. 5276–5299; vol. 8, p. 7750.] vember, 1908, without costs.

4. ENTRY, WRIT OF ($ 26*)-APPEAL FROM So ordered.


Where a writ of entry was instituted in 1909, and transferred to the land court having

jurisdiction, and triable according to the prac(215 Mass. 76)

tice prescribed by St. 1904, c. 448, an appeal BROWNE V. BROWNE.

could be taken to the superior court for a jury

trial on the facts only after a decision by the (Supreme Judicial Court of Massachusetts. land court. Norfolk. May 27, 1913.)

[Ed. Note. For other cases, see Entry, Writ 1. ENTRY, WRIT OF ($ 10*)—JURISDICTION- of, Cent. Dig. $ 50; Dec. Dig. g 26.* ] “WRIT OF ENTRY.'

5. ENTRY, WRIT OF ($ 26*)-APPEAL-MOTION St. 1904, c. 448, provides that jurisdiction TO HAVE ISSUES FRAMED-EFFECT. of writs of entry under Rev. Laws, c. 179, is Where, after trial of a writ of entry in transferred from the superior to the land court. the land court on the merits, the tenant merely Rev. Laws, c. 178, § 47, declares that a levy of filed a motion to have issues framed for trial execution on lands belonging to the debtor, the by a jury in the superior court, such motion title standing fraudulently in the name of the did not amount to a claim of appeal to the tenant, shall be void, unless an "action to re- superior court by St. 1904, c. 448, § 8, and, no cover possession" is begun within a year from appeal having been taken, the motion the return day of the execution. Held, that properly denied. such an action, brought in 1909, was a "writ of [Ed. Note.-For other cases, see Entry, Writ entry” in the ordinary form, within chapter 179, of, Cent. Dig. $ 50; Dec. Dig. § 26.*] and hence jurisdiction was in the land court, and not in the superior court, and the action,

Exceptions and Appeal from Land Court, having been brought in the superior court, was properly transferred to the land court under St. Norfolk County; C. T. Davis, Judge. 1911, c. 433, § 1, providing that, if an action Action by Louis M. Browne against Maud has been brought in the superior court which T. Browne. Judgment for plaintiff, and deshould have been brought in the land court, it may be transferred and shall be subsequently fendant brings exceptions and appeals. Ex. prosecuted as if commenced therein, and all ceptions overruled, and appeal dismissed.


*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes 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 RUGG, C. J. [1] This is a writ of entry power to adjudicate upon it. 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, Speal 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 [5] After the decision of the land court, form. Clark v. Chamberlain, 13 Allen, 257, the tenant did not appeal to the superior 260. It plainly is within the terms of R. L. court and enter his appeal there, but merely c. 179. Therefore jurisdiction of the action filed a motion on August 15 to have issues was in the land court and not in the superior for a jury framed, which was not presented court at the time it was brought. Congrega- to the court until November 5, 1912. This tional Society v. Metcalf, 193 Mass. 288, 79 did not amount to a claim of an appeal unN. E. 343.

der St. 1904, c. 448, § 8. Weeks v. Brooks, It was properly transferred to the land 205 Mass. 458, 92 N. E. 45. Mead v. Cutler, court under St. 1911, c. 433, section 1 of 194 Mass. 277, 80 N. E. 496, is plainly diswhich provides that, “if an action has been tinguishable in respect of the conduct of the brought in the superior court which ought | appealing party. The motion for framing to have been brought in the land court, issues is a subsidiary subject, depending for the court may order the its validity upon an appeal.

The motion action

transferred to the [land was properly denied, inasmuch as the tenant court]

* ; and it shall thereupon be had failed to take any appeal. No error is entered and prosecuted as if it had been com- disclosed upon the report. What has been menced therein, and all prior proceedings said disposes of all the numerous pleas, apotherwise regularly taken shall thereafter be peals, and exceptions of the tenant, or renders valid." This relates merely to procedure. them immaterial. It is in furtherance of a policy frequently

Exceptions overruled. exemplified in legislative acts to enable a

Appeals dismissed. party who has brought a ,cause seasonably to try it upon its merits, notwithstanding defects in the form or substance of pleadings,

(215 Mass. 171) or error in the remedy asked, or mistake in

CALLAHAN V. BOSTON ELEVATED RY. the tribunal invoked, rather than to compel

CO. him to begin it anew. George v. Reed, 101

(Supreme Judicial Court of Massachusetts. Mass. 378.

Suffolk. June 3, 1913.) [2] The statute at bar is well within principles established by this court, and is con- 1. CARRIERS ($ 317*)-CARRIAGE OF PASSEN

GERS-ACTION-MUNICIPAL REGULATION. stitutional. Wilson v. Head, 184 Mass. 515, In an action against a carrier for injuries 69 N. E. 317; Rogers v. Nichols, 186 Mass. received by a passenger in attempting to alight, 440, 71 N. E. 950; Converse v. Ayer, 197 municipal ordinances and regulations tending Mass. 443, and cases cited at 454, 84 N. E. to show that the act of the carrier's servant

complained of was required by competent au98; Adams v. Adams, 211 Mass. 198, 97 N. thority, and so was not in itself negligent, are E. 982; Ewell v. Daggs, 108 U. S. 143, 2 admissible. Sup. Ct. 408, 27 L. Ed. 682. It falls far [Ed. Note.–For other cases, see Carriers, short of some statutes which have been held Cent. Dig. $8 1295, 1297–1305; Dec. Dig.

317.*] valid, although they have been thought to go to the verge. See, for example, Dunbar v. 2. EVIDENCE (8 116*)-ADMISSIBILITY-REL


EVANCY. Boston & 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



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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 [2] 2. The witness Carney was allowed to an inference of suppression of evidence. testify that the reason he had not caused cer

[Ed. Note. For other cases, see Evidence, tain persons whose names had been taken by Cent. Dig. $$ 134, 135; Dec. Dig. $ 116.*]

the defendant's conductor to be summoned as 3. TRIAL (8 203*)-INSTRUCTIONS-THEORY. witnesses was that he had learned that they

In an action against a street car company said they knew nothing about the occurrence. for injuries sustained by plaintiff in alighting This was correct. The testimony did not from its vehicle, he is entitled to have his theory of the cause of the accident submitted to tend to show, and was not admitted to show, the jury, though based only upon his own tes- that those persons in fact had no such knowltimony, which was improbable.

edge. It tended to show the reason why Car(Ed. Note. For other cases, see Trial, Cent. ney had not procured their attendance; and Dig. $8 477-479; Dec. Dig. $ 203.*]

the jury could find that it was a good 4. APPEAL AND ERROR ($ 1067*)-ACTIONS- one.


If so, it answered the claim which INSTRUCTIONS.

otherwise might have been made that the eviIn an action against a street car company dence was suppressed because it would have for injuries sustained by plaintiff, who claimed that the car came to å stop to allow him to been unfavorable to the defendant. For this alight, and, while he was preparing to do so, purpose it was competent to show Carney's started with a sudden and violent jerk, throw belief and the reasons therefor. Com. v. ing him to the ground, where the court did not Goldberg, 212 Mass. 88, 91, 98 N. E. 692; submit his theory of the accident to the jury, but upon objection by plaintiff's counsel stat-Rumrill v. Ash, 169 Mass. 341, 347, 47 N. E. ed that if the car came to a stop where it was 1017; Com. v. Costello, 119 Mass. 214. expected and intended to stop and let off pas

[3] 3. The plaintiff had reason to complain sengers, and before plaintiff had time to alight it suddenly started, the company would be lia of the judge's charge as not covering the ble, that statement, though not intended as, issues raised by the plaintiff's contention. part of the charge, is sufficient to cure the de- That contention was that after the conducfect, where made in the presence of the jury ) tor's failure to cause the car to be stopped and understood by them to be for their guid

in accordance with the plaintiff's request, he [Ed. Note.-For other cases, see Appeal and went to the rear platform and complained to Error, Cent. Dig. § 4229; Dec. Dig. S. 1067.*], the conductor; that the conductor then gave 5. APPEAL AND ERROB (f 1032*)-EXCEPTIONS the signal to stop the car at the next stop-SUFFICIENCY.

ping place; that the plaintiff in preparation The burden being on the excepting party for alighting put his foot upon the step, ed, an exception to the failure of the court to having with his hand a tight hold on the charge in the present instance does not show guard or hand rail, ready to alight as soon error; it appearing that the statement was as the car should have stopped; that the car taken' down by the stenographer, and there be slowed up and either stopped or came nearly ing nothing in the record to show that it was not made in the presence of the jury.

to a full stop, at the regular stopping place; [Ed. Note. For other cases, see Appeal and but that then the conductor gave the signal Error, Cent. Dig. 88 4047-4051; Dec. Dig. 8 to start the car, it started with a sudden jerk, 1032.*]

and threw the plaintiff off. This contention Exceptions from Superior Court, Suffolk might seem improbable; but it was supported County; William Cushing Wait, Judge.

by the plaintiff's testimony, and he had a Action by Thomas Callahan against the right to have the jury pass upon it. Upon Boston Elevated Railway Company. There the omission to charge the jury with referwas a verdict for defendant, and plaintiff ex

ence thereto, he had a right to call the cepted. Exceptions overruled.

judge's attention to the matter and to save Chas. Toye and Jos. L. Keogh, both of Bos- any exception that he might desire. There

Chas. Toye and Jos. L. Keogh, both of Bos- upon a colloquy took place at the judge's ton, for plaintiff. Fredk. Manley Ives, of bench; and the judge said, “If that car came Boston, for defendant.

to a stop at the post on the other side of the

street, where the car was expected to stop, SHELDON, J. [1] 1. The ordinances and intended to stop, to let off passengers, and, regulations were properly admitted. They before the plaintiff had time to get off, the

. tended to show that the act of the defendant's car was suddenly started up and he was servants which was complained of was re- thrown, the defendant would be liable.” quired by competent authority, and so was

[4] If this was said to the jury, or even not in itself negligent. Maisels v. Dry Dock, merely in their hearing but that so they East Broadway & Battery St. Rd., 16 App. understood it to be the rule which they must Div. 391, 45 N. Y. Supp. 4; Stiasny v. follow if they found the facts to be as the Metropolitan St. Ry., 58 App. Div. 172, 68 plaintiff claimed, any prior defect in the N. Y. Supp. 694, affirmed in 172 N. Y. 656, charge was cured, the plaintiff had his full 65 N. E. 1122. This is the converse of the rights, and he has now no ground of excep

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*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Iudexes

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tion. If it was not given to the jury for

The barn was built in 1891 by three sons their guidance, the plaintiff's exceptions must of Cyrus H. Cutter. Cyrus H. Cutter then be sustained.

owned the land on which the barn was built, [5] The burden is always upon the except and he gave to these three sons, who were ing party to make it manifest that he has partners in market gardening, a right to ocbeen aggrieved. Whatever is necessary to cupy his land in consideration of their payshow this must be averred. Richardson v. ing the taxes on it and taking care of him Smith, 9 Gray, 315. As the plaintiff was not and his wife so long as they lived. As we aggrieved if this language of the judge was construe his findings, the judge who heard addressed to the jury, it was for him to show the case did not find it necessary to decide that this was not so. His bill of exceptions whether the agreement under which the barn says that it was at the close of the charge, was built did or did not make it personal presumably in the presence and hearing of property. The three sons who were partthe jury. It seems to have been taken down ners were George, who died in 1898, Charles,

. by the stenographer, which would tend to who died in 1909, and the defendant Edward indicate that it was not a conversation apart, H. Cutter. The plaintiff was a fourth son but part of the public proceedings of the who was in the west when the barn was trial. That it was said in a colloquy at the built. About a year after Charles died the judge's bench does not indicate that it was defendant Edward Cutter brought a petition not addressed to the jury. If it were not so for partition of the land of the father. The addressed, that would naturally have been commissioners appointed to make partition stated in the exceptions. It is of some sig- set off to the plaintiff in this suit inter alia nificance that a statement that it was not a lot known as the “Cutter Homestead." in the hearing of the jury was at first made The "Cutter Homestead" was the land on in the exceptions, and has since been stricken which the barn here in question stood, toout by amendment, and the matter left whol- gether with other buildings. It is described ly undetermined. Moreover, the language by the commissioners as "containing fifteen of the judge is such as he naturally would (15) acres, thirty-nine (39) rods more have addressed to the jury rather than mere- less," and was appraised by them "for the ly to counsel upon the matter being brought sum of fourteen thousand dollars (land ten to his attention.

thousand six hundred dollars and buildings On the whole, it does not appear that as the thrity [sic] four hundred).” The judge made case finally was left to the jury, the plaintiff these findings: “In the course of the hearings has any right of exception to the charge. had upon the said petition no claim was Exceptions overruled.

made by Edward H. Cutter that this build-
ing was personal estate or belonged to the

partnership; the commissioners therefore (215 Mass. 24)

appraised it as real estate, and made a deCUTTER ,v. CUTTER et al.

cree as to the value of such real estate in (Supreme Judicial Court of Massachusetts.

accordance with the situation as disclosed Middlesex. May 24, 1913.)

by the evidence and with reference to the PARTITION ($ 116*)-PROPERTY PARTITIONED --ESTOPPEL.

fact that no claim was made that it was Where the survivor of three sons, who as personal estate." “The decree of partition partners had erected a building constituting was assented to by the respondent Edward personalty on the parent's farm, brought par, H. Cutter.” “Although I can find upon the tition of the land on the parent's death, and made no suggestion that the building was per- evidence in this case that this was originally sonalty, though present at the hearing of the considered as personal property and might commissioners discussing the value of the build- have been removed from the premises withings, and apportioning to another the land on out serious or irreparable injury to the eswhich the building was situated, he was estopped from removing the building as personalty. tate, yet I find upon all the evidence that

[Ed. Note.-For other cases, see Partition, Edward H. Cutter was estopped by his conCent. Dig. $$ 315, 450-453; Dec. Dig. § 116.*]duct in connection with the original apprais

Appeal from Superior Court, Middlesex al of the estate of Charles H. Cutter, as well County; John H. Hardy, Judge.

as by his silence in connection with the parSuit by Waldo R. Cutter against Edwardtition of the real estate of Cyrus H. Cutter, H. Cutter and another. From a decree for last referred to, from making any claim to plaintiff, defendants appeal. Affirmed. the building in question.” Joseph Cummings, of Boston, for appel

As we interpret this finding the judge who lants. Wm. R. Buckminster and Arthur J. heard the case did not find it necessary (as Wellington, both of Boston, for appellee.

we have already said) to decide whether

the agreement under which the barn was LORING, J. This is a bill to enjoin the erected provided that it should be personal defendants from removing from the plain- property because he made the findings above tiff's land a barn which the defendants con- set forth. One of the commissioners to make tend was personal property by force of the partition testified that the defendant Edward agreement under which it was built.

H. Cutter was present at the hearings of the

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