Culbert v. Hall

• Citation: 62 N.E. 955,181 Mass. 24
• Parties: CULBERT v. HALL.
• Decision Date: 01 March 1902
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

181 Mass. 24

62 N.E. 955

CULBERT v. HALL.

Supreme Judicial Court of Massachusetts, Suffolk.

March 1, 1902

COUNSEL

Geo. W. Parke and John

W Titus, for appellant.

W. B French, for appellee.

OPINION

LATHROP, J.

This is a bill in equity to remove a cloud upon the title to a parcel of land in Nantucket. It does not appear to be brought under St. 1893, c. 340, but under the general jurisdiction in equity which the superior court had had since St. 1883, c 223. See Clouston v. Shearer, 99 Mass 209; Smith v. Smith, 150 Mass. 73, 22 N.E. 437. The plaintiff's title is derived from a sale in pursuance of a levy of execution upon the land and a sheriff's deed dated December 28, 1899. The land was attached on mesne process on August 1, 1898, as the property of one Chase. The alleged cloud upon the title was a mortgage of the land from Chase to the firstnamed defendant, dated October 14, 1891, and purporting to secure a debt of $5,000. The question raised by the pleadings was whether this mortgage was without consideration, and made to cover and conceal the property from the creditors of Chase. The case comes before us upon an appeal from an interlocutory decree of the superior court denying a motion of the plaintiff that issues be framed for a jury. The case was afterwards heard upon its merits in the superior court, and a decree entered dismissing the bill. The plaintiff concedes that he has no constitutional right to have issues framed for a jury, and that his application must be addressed to the discretion of the court. In this he is right. The matter has been considered so lately by the court in Parker v. Simpson (Mass.) 62 N.E. 401, that it needs no further discussion. The justice of the superior court, in his discretion, refused to grant issues. We, no doubt, have the power to revise his discretion. Hudson Iron Co. v. Stockbridge Iron Co., 102 Mass. 45; Harris v. Mackintosh, 133 Mass. 228. But the language of the court in Ross v. Insurance Co., 120 Mass. 113, 117, which was a bill in equity to reform a policy of insurance, is applicable here. It was there said by Chief Justice Gray: 'But in the present case it is the plaintiff who moves for an issue to a jury, and his motion only is before us, without any evidence that his suggestion of mistake in the written contract between the parties has any foundation, or any circumstances indicating that the matters can be more satisfactorily tried by a jury than by the court. He therefore fails to show any reason why a trial by jury should be directed upon the issues tendered.' The case before us comes also within the case of Bourke v. Callanan, 160 Mass. 195, 35 N.E. 460. The answers in the present case were filed on June 12, 1900. Two days afterwards the court ordered the pleadings to be completed forthwith, and the cause set down for hearing on the merits for the week beginning June 18th. The replications were not filed until July 5th, and the

motion for issues was not filed until August 8th....