Merrill v. Beckwith

• Decision Date: 24 May 1895
• Citation: 40 N.E. 855,163 Mass. 503
• Parties: MERRILL v. BECKWITH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

163 Mass. 503

40 N.E. 855

MERRILL v. BECKWITH.

Supreme Judicial Court of Massachusetts, Suffolk.

May 24, 1895

COUNSEL

T.M Stetson and E.D. Stetson, for plaintiff.

M.L Storey and J.L Thorndike, for defendant.

OPINION

LATHROP, J.

This is a bill in equity for the specific performance of an alleged contract for the purchase of a parcel of land in this commonwealth. The defendant, in 1889, leased of the plaintiffs the island Nashawena, in Buzzard's Bay, by an indenture containing a covenant that if, during the term, the defendant should be minded to purchase the premises for $65,000, payable $15,000 in cash, and the rest by his bond secured by mortgage as therein specified, and should pay or tender the $15,000 to the plaintiffs, with intent to purchase, then the plaintiffs, in consideration of that sum with the bond and mortgage so tendered, would convey the premises. This lease was renewed, together with the option of purchase on May 1, 1892, for two years. On September 10, 1893, the defendant wrote to one of the plaintiffs a letter containing the following: "I have concluded to avail myself of my option to purchase the island Nashawena, and, as soon as my lawyers have examined titles and made abstracts, I shall be ready to carry it out." The defendant is a citizen and resident of New York, and there has been no sufficient service upon him in this commonwealth. Service has been made by publication, and by delivery of a copy to the committee of the property of the defendant in New York, where he had been adjudged to be a lunatic. It is obvious that no personal decree can be rendered against the defendant. In Spurr v. Scoville, 3 Cush. 578, it was held that a person who had agreed to purchase land in this commonwealth could not maintain a bill in equity against the person who had agreed to sell it, for specific performance, where the defendant resided out of the commonwealth, and had not been served with process here. This was put on the ground that, the suit being in personam, there was no party defendant before the court, and the court was unable to proceed to any decree.

The plaintiffs, however, contend that the case at bar falls within the purview of Pub.St. c. 141, § 22. This statute was first passed in 1845, and was re-enacted in the General Statutes (St.1845, c. 64; Gen.St. c. 100, § 15). It was in force when Spurr v. Scoville, above cited, was decided, but was not referred to by the court. The language of the statute, as it now stands, is as follows: "When a person seised or possessed of real or personal estate, or of an interest therein, upon a trust, express or implied, is under the age of twenty-one years, insane, out of the commonwealth, or not amenable to the process of any court therein which has equity powers, and when in the opinion of the supreme judicial court or of a probate court it is fit that a sale should be made of such estate, or of an interest therein, or that a...