Barker v. MaCkay

• Decision Date: 03 March 1900
• Citation: 56 N.E. 614,175 Mass. 485
• Parties: BARKER v. MACKAY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

175 Mass. 485

56 N.E. 614

BARKER v. MACKAY.

Supreme Judicial Court of Massachusetts, Suffolk.

March 3, 1900

COUNSEL

E. H. Pierce, for plaintiff.

Wm. H Baker, for defendant.

OPINION

MORTON J.

This is a writ of entry to recover certain premises held by the tenant by a tax title. There was evidence of a tender by the demandant of the amount due within two years after the sale. There was a verdict for the demandant, and the case comes here on exceptions by the tenant to certain rulings by the presiding justice, and to the admission of certain testimony. We shall consider only the exceptions on which the tenant relied at the argument before us, treating the others as waived.

The tenant contends in the first place that the demandant's remedy is by bill in equity in the supreme judicial court. We do not see why this contention is not disposed of by Rand v. Robinson, 11 Cush. 289, where it was held that the remedy afforded by St. 1849, c. 213, § 2, was cumulative to that by a writ of entry, 'and was intended to confer the additional remedy of a bill in equity' in cases of redemption from tax sales. That staute was repealed, it is true, by St. 1856, c. 239, § 6; but the provisions of section 2 were re-enacted in section 4 of the statute of 1856, with the proviso that 'relief be sought within five years from such sale.' Manifestly the proviso would have no effect on the cumulative or exclusive character of the remedy by bill in equity. The provisions of St. 1856 c. 239, § 6, have been continued by successive re-enactments to the present time. We see no ground on which it can be contended that the remedy is solely by bill in equity. See Barker v. Mackay, 168 Mass. 76, 46 N.E. 412.

The tenant further contends that the conversation between the demandant's daughter and the tenant's husband in July, 1895, was inadmissible. We think that it was rightly admitted. There was evidence tending to show that the property was bid off at the tax sale by her husband for the tenant, with her knowledge and assent, if not at her request that he borrowed money for her to pay for the tax title, which she paid back; that when the tender was made she consulted with him regarding it; that she paid a subsequent tax bill in his absence, and on his return consulted him about that, also; and that some time after the conversation between demandant's daughter and the husband, and while the tenant still held the tax title, the...