Institution For Savings in Newburyport and Its Vicinity v. Puffer
| Decision Date | 25 February 1909 |
| Parties | INSTITUTION FOR SAVINGS IN NEWBURYPORT AND ITS VICINITY v. PUFFER et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
J. H. Casey and N. N. Jones, for plaintiff.
A. P White, for defendants.
The plaintiff seeks to recover in an action of contract damages for the refusal of the defendant's testator to accept a deed of real estate according to the terms of a written agreement. The plaintiff traced its title, by various mesne conveyances, fro a deed of James Stevenson to William A Hayes, duly entered for record at 55 minutes past 4 in the afternoon of December 1, 1897. Simultaneously with this deed was recorded a declaration of trust by Hayes, which recited that the several parcels of real estate included in the conveyance to him were incumbered, and that Stevenson was desirous of liquidating the debts to which they were subject and to the end that this purpose might be more expeditiously accomplished, Hayes, was clothed with ample power to make repairs and generally to manage the property and to make conveyances of it. As a part of the same transaction and of the consideration for the deed from Stevenson to Hayes, the latter, simultaneously with the record of the other two instruments, executed and delivered to the Boston Five Cents Savings Bank a mortgage upon a part of the real estate for $160,000, and gave his note as trustee to said bank for the additional sum of $15,000. Hayes conveyed the estate in question to one Storer, all the owners from Storer to and including the plaintiff being bona fide purchasers for value. The defendants' testator refused to accept conveyance according to his contract with the plaintiff, because of alleged liens claimed to have been created by six general attachments against the property of James Stevenson, followed by sales upon execution thereunder. These attachments were made at 24 minutes past 4 o'clock in the afternoon of December 1, 1897, and copies of the writs, with so much of the return as was required by law, were deposited in the registry of deeds two minutes later than the deed from Stevenson to Hayes, the declaration of trust by Hayes and the mortgage by Hayes to the Boston Five Cents Savings Bank.
Without discussing the question whether Hayes was himself a bona fide purchaser for value, and whether the plaintiff had a right to rely upon the record title as it found it at the time of the conveyance to Hayes (as to which see Jewett v. Tucker, 139 Mass. 566, 576, 2 N.E. 680, and Stark v. Boynton, 167 Mass. 433, 45 N.E. 764), it is plain that these attachments were dissolved before October 7, 1903, the date of the agreement between the plaintiff and defendants' testator by the death of James Stevenson and the administration proceedings upon his estate. Hedied on the 13th day of February, 1898. A petition for administration upon his estate as that of an intestate was filed on the 6th day of April, 1898, and a petition for the proof of his will was filed by those named as his executors on July 22, 1898. On the 31st day of October, 1898, special administration was granted to William D. Turner, the decree reciting that there was delay in granting letters testamentary under the will of the deceased by reason of a contest over the Probate of his will. On February 28, 1902, a petition was filed by one Hogg, stating that he acted at the request of several creditors of the deceased; that he was informed that the persons named as executors of the will had neglected for more than three years to proceed in the matter of proving the will; and that the entire estate would be needed for the payment of debts, and that the heirs at law had abandoned opposition to the will. Citation issued upon this petition, as well as upon the two preceding ones, and on the 24th day of September, 1902, the will of said Stevenson was admitted to probate, and, the executors named having refused to serve, one White was appointed administrator with the will annexed.
Pub. St. 1882, c. 161, § 56, re-enacted in Rev. Laws, c. 167, § 112, in substance provides that where real estate of a debtor has been attached, and he dies before it is seized on execution, 'the attachment shall be dissolved if administration of the estate of the deceased is granted in this commonwealth within one year after his decease, or if application therefor is made within one year and administration is afterwards granted upon such application.' The design of this statute was to prevent interference with the orderly settlement of estates of deceased persons as provided by the statute, and to bring all the property of a deceased into the control of his personal representatives, to be administered by them and to secure in case of insolvency an equal distribution of the assets among all the creditors of the deceased according to the general policy of the law upon that subject. Wilmarth v. Richmond, 11 Cush. 464; Dunbar v. Kelley, 189 Mass. 390, 75 N.E. 740; Tracy v. Strassel, 191 Mass. 187, 77 N.E. 700. There is strong ground for the argument that the appointment of a special administrator, whose duty is to take possession of the property immediately and under authority of the probate court to collect the rents and preserve the real estate as well as the personal property, is such administration as is contemplated by the statute above cited. As pointed out by the plaintiff in its argument, if the rule were otherwise the purpose of the statute as to equitable distribution of the estate among creditors might be defeated, for it is conceivable that special administration may last longer than a year, and, in the event of a disallowance of a will at the end of a contest lasting longer than that period, it would be necessary to file a new petition for general administration, which would not be filed therefore within one year from the death of the intestate, and thus an attaching creditor would be able to secure a preference. Without determining this question, the facts in the present case show that the administration was in effect granted upon the petition filed within one year after the death of James Stevenson. It is true that the decree of the probate court appointing White as administrator with the will annexed recites that it is made upon the petition of Hogg, but looked at broadly and not technically, the thing that was asked for by the petition of Hogg was the allowance of the will, which had been filed with the petition of the executors appointed in the will. The court might, except for their resignation, have appointed those named as executors by the testator. In substance, the subsequent petition by Hogg was a supplemental one, urging the court to take some action respecting the petitions already filed, and proffering a new candidate for appointment to administer the estate. It follows that the attachment was discharged under the statute and the title of the plaintiff was clear, on the 13th day of August, 1903, when its agreement with the defendants' testator was made.
The defense most relied upon is that of res judicata, grounded upon the fact that the plaintiff brought a suit in equity against these defendants, praying for a specific performance of the contract, for the breach of which damages at law are now sought. In that suit after hearing a decree was entered dismissing the bill. The reason for the dismissal is not stated in the decree itself or in any accompanying memorandum of the court, and does not appear of record. It was agreed that at the trial of the equity cause the defendants argued that the title of the plaintiff, even if good, was so involved in doubt that a decree for specific performance ought not to be ordered, citing in support of their contention Richmond v. Gray, 3 Allen, 27; Jeffries v. Jeffries, 117 Mass., at page 187; Hunting v. Damon, 160 Mass. 441, 35 N.E. 1064; Loring v. Whitney, 167 Mass. 550, 46 N.E. 57. These authorities abundantly sustain the proposition that specific performance of an agreement to purchase land will not be granted, if the title tendered is so doubtful that it may expose the purchaser to litigation as to its validity. The defendants now assert that the sufficiency of the plaintiff's title was necessarily involved in the proceeding in equity, and contends that this point was decided adversely to the plaintiff by the decree dismissing the bill. They invoke the familiar principle that, as between the same parties, a judgment on the merits in an earlier suit is a bar, as to every issue that in fact was or in law might have been litigated, to a later suit upon the same cause of action. Corbett v. Craven, 193 Mass. 30, 78 N.E. 748; Cotter v. Boston & Northern St. Ry. Co., 190 Mass. 302, 76 N.E. 910, and cases cited; Northern Pacific Railway Co. v. Slaght, 205 U.S. 122, 27 S.Ct. 442, 51 L.Ed. 738. But in reason this rule can only be applied to the issues which might have been raised as matter of right by the parties thereto. It cannot in justice extend to cases where the question whether the disputed issue can be tried at all rests in the discretion of the trial tribunal.
It becomes necessary, therefore, to determine whether, when upon a suit in equity, purely equitable relief is denied on the ground that the defendant has come to a position where he cannot comply with an equitable mandate, or that the plaintiff's right, although perhaps sounding in equity and well founded in law, turns out not to be of such character as to be entitled to equitable relief, or that in the exercise of sound discretion it ought not to be granted, or for any other reason the plaintiff ex debito justitiae may require a court of equity to retain jurisdiction for the purpose...
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