Eastern Bridge & Structural Co. v. Worcester Auditorium Co.
| Decision Date | 12 January 1914 |
| Citation | 216 Mass. 426,103 N.E. 913 |
| Parties | EASTERN BRIDGE & STRUCTURAL CO. v. WORCESTER AUDITORIUM CO. et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Jan 12, 1914.
C. T Tatman, of Worcester, for plaintiff.
C. M. Thayer, of Worcester, for defendant Casino Co.
Barton & Barton, of Boston, for defendant Shannon.
Ferdinand A. Wyman, of Boston, for defendant Worcester Auditorium Co.
William J. Taft, of Worcester, pro se.
The defendants never have answered, and before reference to the master to hear the parties and report his findings of fact, or after the coming in of his report, and before directing him to sell the property of the defendant company, a decree taking the bill for confessed should have been entered. But while the proceedings appear to have been unusual and anomalous, the court could define the rights of the plaintiff, and under the master's report, which is referred to, but not shown by the record, direct him to sell the property at a price named, and upon his further report, which also does not appear, that the price could not be obtained, enter the decree authorizing him to sell at public auction, will full directions for the protection and settlement of the rights of the parties. Moody v. Gay, 15 Gray, 457. We shall treat the bill as confessed in our discussion of the questions presented by the report of the judge under which the case is before us.
The agreement of the lessor, the defendant Shannon, to sell the demised premises to the defendant corporation, the lessee and the debtor of the plaintiff, at the price fixed by the lease is a right to property which the plaintiff under R. L. c. 159, § 3, cl. 7, can reach and apply in payment of its debt. McMahon v. Gray, 150 Mass. 289, 291, 22 N.E. 923, 5 L. R. A. 748, 15 Am. St. Rep. 202. While the scope of the bill cannot be enlarged by specific prayers, yet relief co-extensive with the allegations of the bill can be granted if any specific prayer is sufficient, or if not, then under the general prayer. Fordyce v. Dillaway, 212 Mass. 404, 99 N.E. 166.
The 'right, title and interest of the defendant corporation' as stated in the first prayer, is the right under the contract of the debtor to a conveyance in fee. It is no defense for either of the defendants to urge, that the decree of sale was void. The court had jurisdiction of the subject-matter and of the parties, and no appeal having been taken, it is conclusive until vacated by the trial court. Williams Rogers Mfg. Co. v. Rogers, 38 Conn. 121; Ashby v. Ashby, 62 N. J. Eq. 618, 50 A. 473. Nor would it avail the defendants even if the decree had been erroneous or inadvertently entered. Forrest v. Price, 52 N. J. Eq. 16, 29 A. 215; People v. Bergen, 53 N.Y. 404. To this decree, moreover, the defendants gave their written assent by counsel whose authority to act apparently has never been questioned or repudiated.
The master having made the sale as directed, and for a price which satisfied the agreement in the lease, the defendant company complied with the decree requiring it to execute the deed to the purchaser, prepared by the master, but Shannon to whom we shall refer as the defendant upon tender of the amount due to him refused compliance, and thereupon the master made report of what had been done, and as the sale could not be completed he asked that process for contempt issue against the defendant. It would have been more satisfactory if the court had proceeded under St. 1910, c. 376, by entering a final decree which upon being duly attested and recorded in the land records would have vested title in the Casino Company, the corporation which the purchaser had organized to take title, and thus obviated any necessity of obtaining the defendant's signature and acknowledgment.
But if the usual process of contempt to enforce performance of this decree is open, and is expressly recognized as a remedy in St. 1910, c. 376, § 4, which can be invoked by the parties, no action has been taken by the trial court. Hawley v. Bennett, 4 Paige (N. Y.) 163. A master's duty is discharged when, having acted in so far as possible in conformity with the decree, he reports to the court and asks further directions. It is then for the court whose order or decree has been disobeyed to determine what further steps shall be taken to afford full relief, and to enforce obedience, and until this has been done by an appropriate decree there is nothing for this court to revise or affirm. The motion of the defendant company to vacate the decree of sale upon the grounds, that the appointment of the master was void; that the price was inadequate, and that by reason of collusion among bidders the property was sold at an unfair price, having been filed, a second reference was made to another special master to determine these questions, together with 'all questions of fact raised by the master's report as to the refusal of the' defendant to sign the deed, 'the petition for contempt and the answer thereto.' To this report which elaborately reviews the entire proceedings no exceptions were taken, but at the hearing for confirmation and decree 36 requests for rulings were made by the defendants, all of which were refused.
It is unnecessary to consider these requests except as they have been argued, but further reference to the question of contempt will be omitted for reasons previously stated. The decree authorizing the sale of the land itself was as we have said within the power of the court, and the form of the deed prescribed did not call for a covenant of strict warranty from the defendant. It only required him to covenant that the land was free from all incumbrances suffered by him, except the 'leasehold rights,' and the plaintiff having been subrogated to the rights of the debtor and lessee, was entitled to a conveyance passing the defendant's title and interest.
Nor do we perceive any...
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