O'Hare v. Downing

• Decision Date: 26 November 1880
• Citation: 130 Mass. 16
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: John O'Hare v. Oliver H. Downing & another

130 Mass. 16

John O'Hare v. Oliver H. Downing & another

Supreme Court of Massachusetts

November 26, 1880

[Syllabus Material]

Suffolk. Bill in equity, filed August 13, 1880, against Oliver H. Downing and Benjamin F. Bayley, alleging that, on January 29, 1873, Eliza J. Bruce was seised in fee simple in her own right of a certain parcel of real estate in Boston that, on that day, all her real estate in the county of Suffolk was attached in an action at law, upon a writ dated January 29, 1873, and returnable at the next April term of the Superior Court, in which writ Bruce was named as defendant and Downing as plaintiff; that the writ was duly entered in court, and, on June 24, 1880, judgment was entered for the plaintiff in the sum of $ 1494.79 damages and $ 177.02 costs of suit, and execution issued on July 21, 1880; that, on October 3, 1874, Bruce gave a bond, with sureties approved by a master in chancery, conditioned to pay to Downing the amount, if any, which he might recover within thirty days after final judgment in said action, and, on the same day, the bond was filed in the clerk's office of the Superior Court; that, on October 5, 1874, Bruce conveyed said real estate in mortgage, by two mortgage deeds duly recorded, to the Union Institution for Savings, with covenants that the same was free from all incumbrances; that the Union Institution for Savings took possession of the estate for breach of the conditions of said mortgages, and, three years elapsing, became the owner of the estate in fee simple, and sold, and, by its deed dated April 16, 1880, and duly recorded on April 30, 1880, conveyed the same to the plaintiff in fee simple by quitclaim deed in the usual form, and the plaintiff is and has been in possession of the estate since the date of his deed; that the execution in that action was committed by Downing to the defendant Bayley, a deputy sheriff, with instructions to take said real estate on the execution, and to sell and convey the same; that Bayley is proceeding accordingly, and has caused to be printed in a newspaper in Boston a notice of a sale on execution, on September 4, 1880, of all the right, title and interest which Bruce had in the land in question on January 29, 1873, being the time when the same was attached on mesne process; that the plaintiff has requested the defendants to cease their proceedings against the estate, but they refuse so to do, and pretend that said bond did not dissolve said attachment, for the reason, as they allege, that no notice was given to Downing or to his attorney of the examination by the master in chancery of the sureties on the bond; whereas, as the bill alleged, the bond did dissolve the attachment, the proceedings of Bayley make a cloud upon the plaintiff's title, and a sale and conveyance of the estate by Bayley will be a cloud upon the plaintiff's title.

The prayer of the bill was that the defendants be enjoined against any proceedings against said real estate by virtue of said execution, or any other execution under said judgment; and for further relief.

Annexed to the bill was a copy of the bond to dissolve the attachment, which was in the usual form, and signed by Eliza J. Bruce and two sureties, and upon which was the following certificate signed by a master in chancery. "Suffolk ss. October 3, 1874. The above sureties are approved by me."

The defendant Downing filed an answer, admitting the allegations of the bill in regard to the seisin of Bruce, the attachment, judgment and levy of execution; alleging that the bond given to dissolve the attachment was void, because notice was not given to the defendant or his attorney of the time and place appointed to examine the sureties, and because the bond was not filed in the registry of deeds; and denying the validity of the mortgages to the Union Institution for Savings, and of the deed to the plaintiff. The answer concluded as follows: "And the defendant further answering, insists specially that the plaintiff's bill ought to be dismissed, for that (1.) said bill sets forth no cause of action in that it fails to state that any notice, as required by law, was given to the defendant of a hearing upon the sufficiency of said sureties before said master in chancery; and (2.) said bill does not state any such case as calls for the interference of a court of equity; and (3.) if said bill discloses any damage to the plaintiff, he has a full, complete and adequate remedy at law."

On September 24, 1880, the plaintiff filed a general...