Goff v. Hathaway

• Decision Date: 27 February 1902
• Citation: 62 N.E. 722,180 Mass. 497
• Parties: GOFF v. HATHAWAY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

180 Mass. 497

62 N.E. 722

GOFF v. HATHAWAY.

Supreme Judicial Court of Massachusetts, Hampden.

February 27, 1902

COUNSEL

A. M. Copeland, for plaintiff.

D. E Webster, for defendant.

OPINION

HOLMES C.J.

This was a bill to redeem. At the hearing before a master the defendant proved a conveyance by the plaintiff to one Elwell and the master reported against the plaintiff's right to redeem. Thereupon the plaintiff amended his bill by making Elwell a party, alleging that the conveyance to him was in trust for the plaintiff, and praying that Elwell be decreed to reconvey. The bill was taken as confessed against Elwell and a decree for a reconveyance was made 'in the presence of counsel for plaintiff.' The case then was recommitted to the master, who reported, subject to the plaintiff's exception, that the conveyance to Elwell was not in trust, and thereupon the bill was dismissed. The only question before us is whether the defendant Hathaway was concluded by the decree against Elwell.

Assuming for the moment that the case stands as if a simple order taking the bill for confessed had been entered under the eighth equity rule, the defendant would have lost no rights. Taking a bill for confessed as against one defendant does not bind other defendants who have an interest in the matter. Blanchard v. Cooke, 144 Mass. 207, 219, 11 N.E. 83; Johnson's Adm'r v. Longmire, 39 Ala. 143; Holloway v. Moore, 4 Smedes & M. 594; Fulton v. Woodman, 54 Miss. 158; Petty v. Hannum, 2 Humph. 102, 36 Am. Dec. 303. It is for this reason that the order is made as of course.

It is true that this rule has been trenched upon, at least in the way of intimation, in one or two cases where the immediate and so to speak material interest was confined to the defaulting defendant alone, although the same fact was essential to the plaintiff's case against the others. In a suit upon a contract to convey land brought against the contractor and his assignee with notice, the bill having been taken for confessed against the contractor, it was said, although hardly decided, that this established against the other defendant that the contractor had received consideration. Fraily v. Langford, 1 A. K. Marsh. 362, 363. So as to the consideration paid by the assignee of an obligation to his assignor, in a suit upon the obligation. Koen v. White's Heirs, Meigs, 358, 362. On the other hand, in a suit to charge the estate of a married woman, the bill was dismissed upon the trustee's denial although taken for confessed against her. Charry v. Clements, 10 Humph. 552. And this is the general rule where the defendants have a joint interest either by way of contract, tort, or otherwise. Clason v. Morris, 10 Johns. 524, 538, 547; Frow v. De La Vega, 15 Wall. 552, 21 L.Ed. 60.

In the present case the defendant Hathaway has an interest to deny the trust in favor of the plaintiff. She is not in the position of a person who admits that somebody has a right to redeem, and who is indifferent as to the person. On the contrary, whether she admits that any one has such a right does not appear, and it does appear that she expressly denies that the plaintiff has it. Whether any one else can succeed against her or not is immaterial, she is entitled to turn the plaintiff out of court if she can. She can, if she prevails in her denial of the plaintiff's allegation, as the master reports that she does upon the proofs. Therefore, so far as we have gone with the argument, the bill ought to be dismissed.

The only perplexity in the case is caused by the interjection of the extraordinary prayer for a reconveyance from Elwell, and by the decree granting that relief against him. Entering the decree at that stage of the case was irregular and wrong. Frow v. De La Vaga, 15 Wall. 552, 21 L.Ed. 60. If the case had been tried and it had appeared, as afterwards it did appear, that there was no trust in favor of the plaintiff, probably the bill would have been dismissed as against Elwell also. Frow v. De La Vaga, 15 Wall. 552, 21 L.Ed. 60; Clason v. Morris, 10 Johns. 524; Cherry v. Clements, 10 Humph. 552, 555; Hennessee v. Ford, 8 Humph. 499. Compare Lingan v. Henderson, 1 Bland, 236, 266; Phillips v. Hollister, 2 Cold. 269, 272.

The result of the course adopted...