Burke v. Burke
| Decision Date | 15 March 1898 |
| Parties | BURKE et al. v. BURKE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
This was a real action, brought by Mary L. Burke and others against Christopher Burke, to recover certain land located on Cedra street, in Somerville. The plea was nul disseisin. The demandants were the minor daughters of James Burke, deceased, and the action was brought by their guardian. The tenant relied on a deed from the collector of taxes of Somerville. A verdict was directed for the demandants, and the tenant excepted. At the trial the tenant relied on his deed from one Browning, to whom the collector of taxes made the sale, and introduced no other evidence. Exceptions overruled.
Joseph Cummings and M.F. Farrell, for plaintiff.
L Roger Wentworth, for defendants.
The demandants show a title which was good unless their estate passed to the tenant under his deed from the collector of taxes. This deed was in the form required by the statute and, as there was a failure to redeem from the sale, it gave the tenant a good title, if it was founded on proper preliminary proceedings, and if the recitals in it were true. The tenant introduced no evidence to support it, but rested on the deed alone. When one seeks to show that the title of another has passed to himself by virtue of statutory proceedings, he cannot prevail, without proving that everything has been done which the statute calls for as a condition precedent to the transfer of the property. A deed of a collector of taxes is not evidence of the truth of the recitals contained in it, or of the legality of the preliminary proceedings on which the sale purports to be founded. The facts which are essential to the validity of the sale must be proved aliunde. Alvord v. Collin, 20 Pick. 418; Knowlton v. Moore, 136 Mass. 33; Williams v. Peyton, 4 Wheat. 77; Phillips v Phillips, 40 Me. 160; Brown v. Wright, 17 Vt. 97; Polk v. Rose, 25 Md. 153; Black, Tax Titles (2d Ed.) §§ 443, 444. The tenant failed to answer effectively the proof introduced by the demandants, and the demandants were entitled to a verdict.
The demandants are minors, and the writ, after giving their names and residences, adds the words, "who bring this action by their guardian, Mary E. Burke." The bill of exceptions shows that Mary E. Burke was appointed their guardian by the probate court. The tenant argues that the action cannot be maintained, because they did not sue by their next friend. The question thus raised does not appear to have been brought to the attention of the judge at the trial. If it is now open to the tenant, it is under his request to rule that, "upon all the evidence, the demandants have not made out a case, and the jury should be directed to return a verdict for the tenant." If we treat the question as open, it does not appear that there was any error. It is generally said that an infant should defend by guardian and sue by his next friend. A prochein ami is to represent the interest of the infant, and theoretically, although not often formally, he is appointed by the court. Accordingly, he is always subject to removal by the court. Guild v. Cranston, 8 Cush. 506; Tripp v. Gifford, 155 Mass. 109, 29 N.E. 208; Gray v. Parke, 155 Mass. 433, 29 N.E. 641; Bradford v. French, 110 Mass. 365; Burnham v. Seaverns, 101 Mass. 360; 10 Am. & Eng.Enc.Law, 680, 682. In Deford v. State, 30 Md. 179, 199, is this language: 2 Co.Inst. 261, 390; Co.Litt. 135b. And Fitzherbert in the Natura Brevium (27) H, lays it down that ...
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