Maley v. Town of Fairhaven

Decision Date02 July 1932
Citation280 Mass. 54,181 N.E. 798
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court


Case Reserved from Supreme Judicial Court, Bristol County.

Suit by William J. Maley, guardian, against the Town of Fairhaven and others. Case reserved for determination of the Supreme Judicial Court.

Bill dismissed.

L. M. Harlow, of Boston, B. B. Mulligan, of Providence, R. I., and Thomas C. Quinn, of Boston, for plaintiff.

A. Sherman and W. R. Freitas, both of New Bedford, for defendant.


This suit has been reserved for the determination of the full court upon the petition, answer and agreed statement of facts. The plaintiff is the guardian of an incompetent insane person who is a permanently and totally disabled veteran of the Great War. The guardian recovered judgment against the United States under a war risk insurance contract. He petitioned the probate court for authority to invest a part of the money thus received on behalf of his ward in certain real estate in the defendant town. After notice to the department of mental diseaes and with the assent of the United States Veterans' Bureau, and after hearing, a decree was entered authorizing such investment. In December, 1930, the real estate was purchased and paid for in full from the funds of the ward so received. The defendant assessors assessed this real estate for taxes for the year 1931 and delivered a tax warrant for the collection of the same to the defendant tax collector. The defendant assessors have also refused to abate the taxes so assessed and the defendant tax collector has refused to desist from attempting to collect the taxes. The plaintiff contends that the real estate is exempt from taxation under the World War Veterans' Act, 1924,’ so called, Act of June 7, 1924, 43 U. S. Stat., part 1, c. 320, § 22, p. 613 (38 USCA § 454), which, so far as material, reads as follows: That ‘The compensation, insurance, and maintenance and support allowance payable under Parts II, III, and IV, respectively, shall not be assignable; shall not be subject to the claims of creditors of any person to whom an award is made under Parts II, III, or IV; and shall be exempt from all taxation.’

This is a suit in equity in which the town, the board of assessors, and the tax collector are joined as parties defendant. The prayers of the bill are that the assessors and their successors in office and the town be restrained and enjoined from assessing any tax upon the real estate described in the bill, that the assessors be directed to abate the assessment already made, and that the collector of taxes be enjoined from collecting taxes upon the real estate described in the bill.

The single answer filed in behalf of all the defendants admits the allegations of fact set out in the bill.

It has frequently been held that ordinarily a defendant in a suit in equity, by answering to the merits or proceeding to trial, waives the defense of want of equity. Driscoll v. Smith, 184 Mass. 221, 223, 68 N. E. 210;Bauer v. International Waste Co., 201 Mass. 197, 201, 87 N. E. 637;Baskes v. Cushing, 270 Mass. 230, 232, 170 N. E. 42;Nelson v. Belmont, 274 Mass. 35, 39, 174 N. E. 320.

It is, nevertheless, the duty of the court to consider of its own motion whether it has jurisdiction of the subject matter set out in the bill. Consent or waiver by parties cannot confer jurisdiction over a cause not vested in the court by law. Eaton v. Eaton, 233 Mass. 351, 364, 124 N. E. 37, and cases cited. New England Home for Deaf Mutes v. Leader Filling Stations Corp., 276 Mass. 153, 177 N. E. 97;West Boylston Manuf. Co. v. Assessors of Easthampton, 277 Mass. 180, 178 N. E. 531;Exporters of Manufacturers' Products v. Butterworth-Judson Co., 258 U. S. 365, 42 S. Ct. 331, 66 L. Ed. 663;Pittsburgh, C. & St. L. Railway Co. v. Ramsey, 22 Wall. 322, 327, 22 L. Ed. 823.

The jurisdiction of a court of equity to try the validity of assessments upon property was considered in Welch v. Boston, 208 Mass. 326, 94 N. E. 271,35 L. R. A. (N. S.) 330, and discussed by Chief Justice Knowlton speaking for the court with his usual thoroughness and conclusiveness. It was there said at page 328 of 208 Mass.,94 N. E. 271, 272: We have an elaborate statutory system covering this subject [the raising of money by taxation], the purpose of which is to assure a prompt collection of revenue for the government, in its different departments, and subdivisions. Remedies are provided for those who are compelled to pay taxes illegally assessed, which are direct and adequate. For this reason it has been decided many times, in this commonwealth, that equity will not interfere to determine the validity of a tax, but will leave the machinery of government to move precisely as it was intended to move by the framers...

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24 cases
  • Parkway, Inc. v. United States Fire Ins. Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • October 28, 1943
    ...the objection that a plain, adequate and complete remedy at law exists is in the particular case truly jurisdictional (Maley v. Fairhaven, 280 Mass. 54, 181 N.E. 798;Jones v. Jones, 297 Mass. 198, 202, 7 N.E.2d 1015), it is waived unless seasonably taken and consistently pressed. Baker v. L......
  • Howes Bros. Co. v. Massachusetts Unemployment Compensation Com'n
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • December 30, 1936
    ... ... 330; Warr v. Collector of Taxes of Taunton, 234 ... Mass. 279, 125 N.E. 557; Maley v. Fairhaven, 280 ... Mass. 54, 181 N.E. 798; Atlantic Pharmacal Co. v ... Commissioner of ... ...
  • Parkway, Inc. v. United States Fire Insurance Company& Others.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • October 28, 1943
    ... ... particular case truly jurisdictional (Maley v ... Fairhaven, 280 Mass. 54; Jones v. Jones, 297 ... Mass. 198 , 202), it is waived unless ... ...
  • Harvey v. Fiduciary Trust Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • February 18, 1938
    ...Conn. 702, 38 A. 701;Leman v. Sherman, 117 Ill. 657, 6 N.E. 872;Harwood v. Tracy, 118 Mo. 631, 24 S.W. 214. See, also, Maley v. Fairhaven, 280 Mass. 54, 56, 181 N.E. 798;Stratton v. St. Louis Southwestern Railway Co., 282 U.S. 10, 18, 51 S.Ct. 8, 11, 75 L.Ed. 135;United States v. Corrick, 2......
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