Coen v. Corr

• Decision Date: 15 December 1959
• Docket Number: No. 2769,2769
• Citation: 90 R.I. 185,156 A.2d 406
• Parties: Joseph H. COEN et al., Trustees, v. Elizabeth E. CORR. Eq.
• Court: Rhode Island Supreme Court

Page 406

156 A.2d 406

90 R.I. 185

Joseph H. COEN et al., Trustees, v. Elizabeth E. CORR.

Eq. No. 2769.

Supreme Court of Rhode Island.

Dec. 15, 1959.

Leo L. Jacques, Providence, for complainants.

Isidore Kirshenbaum, Alfred Factor, Providence, for respondent.

POWERS, Justice.

This is a bill in equity to obtain injunctive and affirmative relief against the respondent for her alleged violation of certain covenants, restrictions and easements. The cause is before us on the respondent's appeal from a decree of the superior court denying her motion to dismiss the complainants' bill on the ground that they are no longer parties in interest.

The bill of complaint was filed December 28, 1955. It appears therefrom that complainants are the trustees under a deed of trust from John Montaquila and his brother Samuel, dated February 14, 1952, assigning and conveying to the trustees the title in fee simple to the lots of land remaining unsold in a real estate development known as Dean Estates. John and Samuel Montaquila had previously acquired the property from Dean Estates, Inc., a Rhode Island corporation.

The bill alleges and respondent admits that she is the owner of three contiguous parcels constituting a single large lot located in the Dean Estates and that in her deeds, as in the deeds to all purchasers of property therein, there are certain covenants, restrictions and easements, among which is a prohibition against building a fence or wall without the consent of the grantors. This restriction appears to be contained in a general plan related to the development of the entire plat.

It is admitted that notwithstanding this restriction, the respondent has partially constructed an iron fence on her premises. The bill of complaint alleges that on becoming aware of this they notified her by letter of their objection and she agreed to go no further in the erection of the fense. This allegation is denied by respondent.

The respondent's answer contains a cross bill in which she sets forth that the same restriction is in the deeds of all property owners in Dean Estates, but notwithstanding this a considerable number of them, twenty-eight to be exact, have erected fences and constructed walls without objection being made by complainants, and that therefore the latter are estopped to enforce the restriction or covenant against respondent.

A restraining order was entered and various motions were heard from time to time until the present phase of the litigation was reached.

The record discloses that the trust created in 1952 was for a period of five years or in the event of certain contingencies for a lesser period. However, by a decree of the superior court dated September 5, 1957, the trust was extended for one year. On September 9, 1957 respondent filed her first motion to dismiss the bill of complaint, which motion was denied without prejudice November 14, 1957, the court taking cognizance of the decree extending the life of the trust. In his rescript the trial justice made passing reference to complainants' contention that by the language of the trust the provision that it should exist for five years was directory rather than mandatory, and the court further noted that there still remained real estate in the hands of the trustees.

Thereafter respondent again filed a motion to dismiss, claiming that all of the real estate in the hands of the trustees at the time of the denial of her previous motion to dismiss had since been conveyed by them to 'John Montaquila, or to his nominee' by virtue of an agreement dated October 24, 1958. This motion was heard on February 5, 1959 and on February 9 the court entered a decree wherein respondent's motion to dismiss was denied without prejudice. It is from that decree that she has claimed an appeal to this court.

When the appeal came on to be heard it became apparent that the jurisdiction of this court was in issue on the question of whether the appeal was from a final decree as required by General Laws 1956, § 9-24-1, or from such an interlocutory decree as falls within those exceptions authorized by § 9-24-7. The question was not raised by complainants, but it is well settled that this court will inquire on its own motion whenever doubt exists. See Fudim v. Kane, 47 R.I. 357, 133 A. 351, and Burns v. Burns, 49 R.I. 421, 143 A. 697. Counsel were directed to furnish supplementary briefs on this single issue within a specified time and they have complied. On the basis of the authorities cited to us and as a result of our independent research we are of the opinion that the appeal is premature.

The definition of 'final decree' was laid down in this court by the leading case of McAuslan v. McAuslan, 34 R.I. 462, at page 469, 83 A. 837, at page 840, where the court quoted with approval Grant v. Phoenix Mut. Life Ins. Co., 106 U.S. 429, 1 S.Ct. 414, 27 L.Ed. 237, wherein it was stated that a final decree 'must terminate the litigation of the parties on the merits of the case, so that if there should be an affirmance here, the court below would have nothing to do but to execute the decree it...