Baker v. Baker

• Decision Date: 29 June 1878
• Citation: 125 Mass. 7
• Parties: Watson Baker v. Adeline Baker
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

125 Mass. 7

Watson Baker v. Adeline Baker

Supreme Court of Massachusetts

June 29, 1878

Barnstable. Writ of entry, dated September 30, 1876, to recover three undivided fourth parts of certain lands in Dennis. Plea, nul disseisin.

At the trial in the Superior Court, before Aldrich, J., without a jury, it was admitted that on September 29, 1863, the demandant was the owner of two undivided fourth parts only of the demanded premises, and that on February 26, 1870, he became the owner of another undivided fourth part of the same.

The tenant, to show her title to two undivided fourth parts of the demanded premises, offered in evidence the levy of an execution in favor of the Bank of Cape Cod against the demandant, made on September 29, 1863, and a warranty deed from the bank to her.

The appraisers' certificate, on the levy of execution, was as follows: "We, the subscribers, having been first duly chosen and sworn, as above certified, faithfully and impartially to appraise such real estate as should be shown to us as taken by force of this execution, proceeded with the officer, Edward Thacher, to view and examine so far as necessary to form a just estimate of its value, the following described real estate situated in Dennis, in the county of Barnstable, shown to us by the within named creditor as the estate of the within named Watson Baker the debtor, to wit: a tract of woodland and brush land called the clay-pit lot, and bounded on the north by the road to Edward Sears's easterly by heirs of Samuel Chase and others, southerly by heirs of Reuben Baker and westerly by heirs of Rosanna Small containing about five acres, and we have appraised said tract at the sum of one hundred and twenty-five dollars. Also another piece of woodland called Desire's lot, bounded west by land of Ahira Kelley and others, north by land of heirs of Eleazer Nickerson, easterly by land of Miller W Nickerson and heirs of Eleazer Nickerson, south by land of Obed Baker, containing about two acres; and we have appraised said tract at the sum of thirty dollars. And we have set off all the parcels of land aforesaid by metes and bounds to the within named corporation, the President, Directors and Company of the Bank of Cape Cod, to hold to them and their assigns forever as an estate in fee simple and at the price above specified."

So much of the officer's return as is now material set forth that, by virtue of the execution, he seized "the real estate described in the foregoing certificate of the appraisers, the same having been attached on mesne process in the suit in which this execution was issued, and afterwards on the twelfth day of October, 1863, proceeding with the levy, I caused three disinterested and discreet men to be sworn as appraisers as above, to wit: Miller W. Nickerson, who was appointed by the within named corporation the creditor, Marshall S. Underwood, who was appointed by me, and Alpheus Baker, who was appointed by me for the within named Watson Baker the debtor; said debtor being absent from and not a resident of this state and having no agent or attorney known to me." "And I this day levied this execution on said real estate described as aforesaid and delivered seisin and possession thereof to George A. King, agent and attorney of said corporation, the creditor, to hold to said corporation and its assigns forever, in part satisfaction of this execution as aforesaid."

The warranty deed from the bank to the tenant was of one half of Desire's lot and of the clay-pit lot, the metes and bounds of which were set forth and described as in the appraisers' certificate.

The demandant asked the judge to rule that the levy was void, so far as the demanded premises were concerned, because it failed to describe the land levied upon, and the debtor's interest therein as required by law. But the judge refused so to rule.

The demandant offered to prove that the appraiser chosen by the bank and the appraiser chosen by the officer were, at the time of such appointment and while acting as such appraisers, stockholders in the Bank of Cape Cod, the execution creditor, and that this fact was known to the bank at the time of said appointments and during their action as appraisers.

The demandant also offered to prove that the clay-pit lot, so called, contained, as bounded in the appraisers' certificate, twenty acres, and Desire's lot, so called as so bounded, eight acres; and that, at the time of the levy, the bank, the officer and the appraisers supposed that the demandant owned but one undivided fourth part of the demanded premises, and that with the knowledge of and in accordance with the intentions of all parties in...