Emery v. Boston Terminal Co.
| Decision Date | 01 March 1901 |
| Citation | 59 N.E. 763,178 Mass. 172 |
| Parties | EMERY et al. v. BOSTON TERMINAL CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Morse & Friedman, for petitioners.
P. H Cooney, for respondent.
This is a petition for the assessment of damages caused by the taking of Hobbs Wharf in Boston under the right of eminent domain. The taking was on January 5, 1897. At that time the petitioners were in under a witten lease which had been extended to May 1, 1897. The other parties interested have been settled with and there is no question about them. The petitioners offered to show an oral agreement extending their lease for a year more, made before January 5, and a written memorandum of the same made after that date. These were excluded by the court, and the petitioners excepted. The petitioners also excepted to the exclusion of an agreement under seal, made before the taking, between the owners of the wharf and the respondent, by which the owners covenanted to convey the premises on or before a certain date, free of incumbrances except a lease 'expiring May 1, 1897, with privilege to the lessee of an additional year from that date,' and by which the parties agreed that if the property was taken by right of eminent domain before the conveyance the price fixed should be the damages paid. Other exceptions will be mentioned later. We think it quite plain notwithstanding the acute argument for the petitioners, that the exclusion of the foregoing evidence was right. Pub. St. c. 120, § 3.
To begin with the question of pleading, it was not necessary for the respondent to plead the statute. It was a stranger to the petitioner's title, and, when the petitioners alleged that they had a good one, had a right to call on them to prove it without undertaking to specify in what respect it might turn out bad. A remote and imperfect analogy may be found in the rule that a stranger need not make profert of a deed. Shep. Touch. 73. Moreover the petition itself set out the facts, and would have been demurrable but for the admitted interest of the petitioners up to May 1, 1897. Ahrend v. Odiorne, 118 Mass. 261, 268.
In the next place, the operation of the statute is not confined to privies, but the respondent can rely upon it. The natural interpretation of the words of Pub. St. c. 120, § 3, is that the writing required for the creation of an interest in land is more than a memorandum of the constituent act, that it is itself the constituent act. It seems to us clear that the writing must have a part at least in the creation of the estate. But if a different construction should be adopted in view of the history of the section and upon a comparison with Pub. St. c. 78, § 1, the result would not be changed.
At the date of the taking the petitioners had no more estate beyond May 1, as against the respondent, than they had as against the owners of the wharf. To that extent at least the words of the act are explicit. The statute here is not dealing with promises, in which case it naturally would be directed only to the rights of the parties to a contract, but with estates, which are interests in rem, good against all the world. It therefore is dealing with the rights of all the world, and when it says that an estate created without writing shall have the effect of an estate at will only, it affects the reciprocal rights of the tenant and of any one else who may be concerned in the nature of that estate.
The petitioners, having had no estate beyond May 1 at the date of the taking, could not get one by the retroaction of a letter from the former owners, who were strangers to the land at the time when it was written. It seems to be settled in England with regard to sales of chattels under the seventeenth section of the statute of frauds (Pub. St. c. 78, § 5) that the memorandum does not retroact so as to affect third persons. Morgan v. Sykes, stated in Coats v. Chaplin, L. R. 3 Q. B. 483, 486; Stockdale v. Dunlop, 6 Mees. & W. 224, 233; Felthouse v. Bindley, 11 C. B. (N. S.) 869, 877; Benj. Sales (7th Am. Ed.) § 40a, note m. See Marsh v. Hyde, 3 Gray, 331, 333; Bird v. Munroe, 66 Me. 337, 343. In Leadlay v. McRoberts, 13 Ont. App. 378, 383, where it is said that an act satisfying the statute relates back to the date of the oral contract, the judge is speaking of the effect as between the parties,--a matter which we need not consider. A similar principle to that which we adopt is familiar in regard to ratification. Whiting v. Insurance Co., 129 Mass. 240, 241.
The case of Gardner v. Rowe, 2 Sim. & S. 346, 5 Russ. 258, relied on by the petitioners, is not inconsistent with our decision. That was the case of a trust declared by a bankrupt after the bankruptcy. Assignees in bankruptcy are successors per universitatem, and stand in the shoes of the bankrupt. Chipman v. Bank, 156 Mass. 147, 149, 30 N.E. 610; Sewage Co. v. Molleson, 5 Sess. Cas. (4th Series) 1125, 1138. Property held in trust does not pass to them. 5 Russ. 262; Low v. Welch, 139 Mass. 33, 29 N.E. 216. And as was observed in argument, 2 Sim. & S. 348, the statute of frauds did not require trusts to be created by writing but only to be proved by it. So, when the only change since the beginning of the alleged trust is the death of the cestui que trust, it may be that the trustee still can make a declaration which will be effectual as to the of Gardner v. Rowe and Ambrose v. Ambrose v. Ambrose, 1 P. Wms. 321. But the cases of Gardner v. Rowe and ambrose v. Ambrose are inapplicable to the case of an instrument which is more than a memorandum. They also are inapplicable to a case where the person to be affected comes in not in privity but by a new, adverse and paramount title. Even a disseisor takes free of trusts, at least by the old law. Chudleigh's Case, 1 Coke, 120, 122a; Lewin, Trusts (10th Ed.) 9, 10, 13. The prevailing opinion seems to be that a tax title is a new title and not merely the sum of all old titles. Hefner v. Insurance Co., 123 U.S. 747, 751, 8 S.Ct. 337, 31 L.Ed. 309; Brewer v. District of Columbia, 5 Mackay, 274, 278; McQuity v. Doudna, 101 Iowa, 144, 146, 70 N.E. 99; Textor v. Shipley, 86 Md. 424, 438, 38 A. 932. See Harrison v. Dolan, 172 Mass. 395, 398, 52 N.E. 513. And if there is such a thing as a new title known to the law, one founded upon a taking by the right of eminent domain is as clear an example as can be found. See Williams, Pers. Prop. (15th Ed.) 46.
It very properly was not argued that the reference to the tenants' supposed rights in the agreement between the owners and the respondent satisfied Pub. St. c. 120, § 3. We need not...
To continue reading
Request your trial