Foss v. Atkins

• Decision Date: 07 January 1910
• Citation: 90 N.E. 578,204 Mass. 337
• Parties: FOSS v. ATKINS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

204 Mass. 337

90 N.E. 578

FOSS v. ATKINS et al.

Supreme Judicial Court of Massachusetts, Barnstable.

January 7, 1910

COUNSEL

Paul

M Foss, for petitioner.

Geo. A King and Geo. G. King, for respondents.

OPINION

RUGG J.

The petitioner duly filed a petition for registration of the title to a certain tract of land in Provincetown. The judge of the land court, on February 16 1906, filed a decision in which he found that the petitioner had title to part of the land, and the respondents to the rest. An appeal from this decision to the superior court was dismissed because the issues were not properly framed. 193 Mass. 486, 79 N.E. 763. On January 7, 1907, the petitioner filed a motion to dismiss his petition without prejudice, apparently under the first sentence of section 36, c. 128, Rev. Laws. This motion, although set down for a hearing, was continued generally at petitioner's request, and has never been acted on. Notwithstanding its pendency, the land court allowed the respondents' motion for substituting themselves as petitioners for registration as to so much of the land as was by the decision of February 16th found to belong to them, and a decree, declaring them to be owners of this part and that their title thereto be registered was entered on March 11, 1907. Appeal from this action to the superior court and exceptions taken during trial there were held to be void in 201 Mass. 158, 87 N.E. 189. The rescript of that decision was on February 25, 1909. On March 16, 1909, a memorandum of disposal and certified copy of decree were sent by the land court to the assistant recorder at Barnstable, who on March 17, 1909, transcribed it in the registration book, and issued duplicate certificate to the respondents as owners as required in Rev. Laws, c. 128, § 40. On March 22, 1909, the petitioner filed a motion to withdraw his application for registration upon such terms as the court might fix, under the second sentence of section 36, c. 128, Rev. Laws. This was by the land court disallowed, with the indorsement, 'A final decree having been entered.' The petitioner excepted. The only decree, which has been entered in the land court, is the one registering in the respondents the title to the portion of the tract described in the petition, which was found by the decision of the judge of the land court to belong to them. There has been no decree respecting the title to the land found by that decision to belong to the petitioner. That subject-matter appears to be still pending before the land court. The only ground upon which it can be claimed that a final decree had been entered in the land court is that the respondents' motion for substitution, which was in form a motion to amend the petition by substituting their own names 'as the persons in whose names a portion of the land described in said petition is to be registered' furnishes a proper basis for such a decree. It was said by way of precaution and dictum in 201 Mass., at pages 162, 163, 87 N.E. 189, because the question was not then before the court, that such an amendment and substitution was beyond the authority of the land court. The point is now raised whether a decree having no other support than such an amendment is valid. What was said in that case is made the ground of this decision. There is no principle of 'procedure or practice either in personal actions or in proceedings in rem nor * * * any provision of Rev. Laws, c. 128, which authorizes the land court to...