Fales v. Fales
| Decision Date | 28 November 1888 |
| Citation | 148 Mass. 42,19 N.E. 6 |
| Parties | FALES v. FALES. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
B.F. Butler and F.L. Washburn, for respondent.
T.M Stetson and H.J. Fuller, for petitioner.
The ruling asked for by the respondent was properly refused. The question at issue was whether James Fales was seized of an undivided interest in the lands in controversy at the time of his death. This depended--First, on whether he had delivered certain deeds to Giles S. Fales; and, secondly, whether, if such deeds had been so delivered, there had been a reconveyance by a lost grant to James. The respondent asked for a ruling that certain declarations by Giles, tending to show an ownership in common, could bear only on the question of due delivery of the deeds from James to Giles. But they were competent to be considered also on the question of a lost grant. White v. Loring, 24 Pick. 319. Besides the question of the correctness of this ruling is now unimportant. The jury found that the deeds had never been delivered. If never delivered, there was no question of a reconveyance to be considered. The evidence was conceded to be competent upon the question of the delivery of the deeds, and the finding of the jury made that the only question of importance. No reliance was placed, in the argument, upon the above objection; but it has been earnestly contended that the judge erred in overruling the motion of various persons, not named in the petition as interested in the lands, that the proceedings be continued from term to term until they have had time to appear and answer thereto. They claimed to be interested under the eleventh article of the will of Giles S. Fales, which was produced, and they offered no other evidence in support of their claim and motion, except the will itself. It is contended that they were not bound to produce any other evidence, at that stage, but that the court ought to have allowed the motion, and to have permitted them to appear and plead their title, and to go to the jury on the question of the delivery of the deeds from James to Giles. But we do not think so. Before they could be entitled to be heard on the main questions at issue, it was proper that they should be held to show that they were interested in those questions. If they had no interest, there was no occasion to delay the proceedings in order to give them an opportunity to come in and try the case over again. By Pub.St. c. 178, § 11, it is provided that, "if in any stage of the proceedings it appears to the court that any person interested, whether named in the petition or not, is out of the commonwealth, and has not had opportunity to appear and answer, the suit shall be continued from term to term until such person has had time to appear and answer thereto." And by Pub.St. c. 178, § 15, it is provided that "if a person not named in the petition appears, and pleads or answers, the petitioner may reply that such person has no estate or interest in the lands, and may pray judgment if he shall be admitted to object; *** and if, upon such replication, it appears that the respondent has no estate or interest in the lands, the matter of his plea or objection to the partition shall be no further inquired of." In order to entitle them to appear and answer, it was necessary for them in the first place to make it appear that they had some estate or interest in the lands. It was said in Lawless v. Reagan, 128 Mass. 592, 594, that "it would greatly obstruct and delay the proceedings of the probate courts if persons having no legal interest in the result, and no motive except that of affection and friendship for those who have a legal interest, could be permitted to appeal from the decree of that court." Similar reasons were applicable here, where the motion for delay was not made till after a trial upon the merits and a verdict of a...
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