Clark v. Lancy
| Decision Date | 03 April 1901 |
| Citation | 59 N.E. 1034,178 Mass. 460 |
| Parties | CLARK et al. v. LANCY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
W. O. Childs, for appellant.
N. C Bartlett, for respondents.
This is a bill to redeem from a tax title. The bill was filed October 12, 1898, and was originally brought in the name of Mary A Clark against the defendant Benjamin Lancy. She died in April, 1899, and upon motion by the defendant her administrator was cited in, and appeared, and took upon himself the prosecution of the suit. Subsequently an amended bill was filed, in which the administrator and one York were joined as plaintiffs, and Maria S. Lancy was joined with Benjamin Lancy as defendant. There was a demurrer to this bill, and also a motion to strike out certain paragraphs as irrelevant and immaterial, and a motion to vacate the order of reference to a master. The demurrer and the motions were overruled. There was a decree for the plaintiff, and the case is here on an appeal from that decree, and from the order overruling the exceptions to the master's report. We have considered all the objections--which are numerous--raised by the respondents, but shall speak only of such as we think require notice.
At the time of the tax sale the premises belonged to the above-named Mary A. Clark, who had inherited them from her son, George W. Clark. She was an aged woman, living in Manchester, N.H. The taxes for the nonpayment of which the premises were sold were assessed in 1892, and the sale took place October 12, 1893. In 1894, Mrs. Clark conveyed the premises by deed with full covenants to York, and took back a mortgage. Early in 1895, York heard of the tax sale. Before that neither he nor Mrs. Clark knew that any tax had remained unpaid, or that the estate had been sold for taxes. Upon hearing of the tax sale, York notified one of the administrators of the estate of George W. Clark, who lived in Boston, and the master found that from that time until October 12, 1895, when the two years from the sale expired, reasonable diligence was used to find Lancy and to redeem the premises. The master also found that the delay from that time until the filing of the bill was accounted for partly by the fact that Lancy at all times refused to release except upon the payment of a substantial bonus, partly by the fact that York considered that it was the business of Mrs. Clark to clear the title, and partly because in consequence of some misunderstanding, not fully explained, the interests of Mrs. Clark were not attended to as they should have been. And upon the facts found by him the master reported that the plaintiff was entitled to receem.
Taking them up, so far as possible, in logical order, the first objection of which we deem it necessary to speak, and one that is contained in the demurrer, is that the bill was not brought within five years from the sale. The ground of this objection is that the five years began to run on the day of the sale, which was October 12, 1893, and therefore that the bill, which was filed October 12, 1898, was filed one day too late. On this point we deem it enough to refer to Bemis v. Leonard, 118 Mass. 502.
The next objection, also contained in the demurrer, is that the five years had run as to York and Maria Lancy when they were made parties, and that York was not a necessary party. Mrs. Clark's interest as mortgagee passed to her administrator (Pub. St. c. 133, § 6), and it would be giving to the statutes in regard to redemption too narrow a construction to hold that he could not redeem. Bowers v. Williams, 34 Miss. 324; Blackw. Tax Titles (4th Ed.) § 424, note 1. It is expressly provided that in suits in equity, if a party dies, the administrator may be cited in, as was done here, if the cause was one that could be revived by him. Pub. St. c. 165, § 19. We have no doubt that this was such a cause. As to York, his interest was such that he could have been admitted to prosecute the suit in Mrs. Clark's name, if, for any reason, she had declined to go on; and on her death he could have procured its revival, and could have proceeded in the name of her administrator. We think, therefore, that he was properly made a party, and that the five years are to be reckoned, so far as he is concerned, from the filing of the original bill. As to Maria Lancy, upon the allegations in the amended bill she, in effect, held the title as trustee for the plaintiffs, and upon a judgment against the defendant Benjamin Lancy entitling the plaintiffs to redeem she could have been compelled by proper proceedings to convey to them. She was properly made a party, therefore, and the five-years limitation would not operate in her favor. The case of Smith v. Butler does not apply. We see no ground on which the amended bill can be held to be multifarious.
The other causes of demurrer are that there is no equity in the bill, and that no right to relief is disclosed. We shall consider them later.
The motion to strike out certain paragraphs was properly overruled. They all contained allegations relevant and material to the plaintiffs' case.
The motion to...
To continue reading
Request your trial