Moran v. Manning

• Citation: 306 Mass. 404,28 N.E.2d 478
• Parties: MORAN v. MANNING et al.
• Decision Date: 01 July 1940
• Court: United States State Supreme Judicial Court of Massachusetts

306 Mass. 404

28 N.E.2d 478

MORAN

v.MANNING et al.

Supreme Judicial Court of Massachusetts, Middlesex.

July 1, 1940.

Suit in equity by George J. Moran against Jeremiah L. Manning and others for an injunction, for the establishment of plaintiff's rights in land, and for other relief. From a decree sustaining defendants' plea in bar and from a decree dismissing the bill, plaintiff appeals.

Decrees affirmed.Appeal from Superior Court, Middlesex County; O'Connell, Judge.

J. J. Tobin, of Boston, for plaintiff.

D. H. Stuart, of Boston, for defendants.

FIELD, Chief Justice.

This is a suit in equity. The bill of complaint, filed January 20, 1939, alleges that the defendants Jeremiah L. Manning, John Francis Manning and Sarah Ruth Willard inherited in common a certain parcel of land known as 279 McGrath Highway, Somerville, as the heirs of Mary E. Flagg, and that the defendant Jeremiah L. Manning was appointed administrator of said estate on or about April 14, 1936. The bill alleges further that the plaintiff, on August 1, 1937, ‘entered into a written agreement with the * * * [defendant], Jeremiah L. Manning, to lease the land known as No. 279 McGrath Highway, Somerville, with option to buy, a copy of which is hereby annexed marked ‘A’; and further that on or about August 1, 1938, that your * * * [plaintiff] and the * * * [defendant], Jeremiah L. Manning, agreed to extend said agreement for another year, that is, up to and including July 31, 1939 and that in furtherance of this agreement the * * * [defendant], Jeremiah L. Manning, had his lease changed by adding the figure ‘8’ after ‘1937’ in the first line of said agreement marked ‘A’ and that the copy retained and held by the * * * [plaintiff], George Moran, was also changed in a similar manner; meaning and intending that the date in the new agreement should now read ‘first day of August, 1938,” and that the defendants ‘John Francis Manning, and Sarah Ruth Willard, knew of said agreement and option and also of renewal of same; that they ratified and confirmed both of said instruments.’

A copy of the written agreement annexed to the bill recites that it was ‘made the first day of August 1937, 8, by and between Jeremiah L. Manning * * * hereinafter called the lessor, and George J. Moran * * * hereinafter called the lessee,’ and recites that ‘the lessor does hereby demise and lease unto the lessee’ the premises in question ‘to have and to hold the said lot or parcel of land with the appurtenances unto the said lessee, his executors, administrators, and assigns, for and during the term of one year from the first day of August, 1937, yielding and paying as rent the sum of $120, yearly by equal monthly payments of $10. each, the first payment to be made on the first day of August now next ensuing.’ The instrument also recites certain agreements and covenants of the parties, including an agreement of the parties ‘that the said lessee shall have the exclusive right and option to purchase from the lessor the said lot of land at any time during the term of this lease for the price of $1,100, and the said lessor agrees to sell, transfer, convey, assign, and deliver to the lessee all his right, title and interest in and to said lot of land by a good and sufficient deed, free and clear from all liens, encumbrances and assessments,’ a covenant of the said lessor for quiet enjoyment by the lessee ‘without hindrance or interruption by the said lessor or any person or persons whomsoever,’ and a covenant of the ‘said lessor, for himself, his heirs, executors, administrators and assigns that he has good right and title to the said premises and that he has the right to lease the same.’ The instrument purports to have been signed and sealed by ‘Jeremiah L. Manning, administrator Mary E. Flagg, Est.’ and ‘George J. Moran.’

The bill alleges that the plaintiff ‘lived up to and complied with all terms of said agreement, in copy annexed marked ‘A’, and further had arranged and desired to and still desires to purchase said land under the terms and conditions as agreed upon' therein. The bill alleges also that the defendants Jeremiah L. Manning, John Francis Manning and Sarah Ruth Willard, with full knowledge of the lease, ‘sold, transferred and conveyed said land’ on December 24, 1938, to the defendant John Kolligian, who had ‘full knowledge of instrument and agreement’ between the plaintiff and the other defendants, that the defendant John Kolligian has leased the land to the defendant Union Motor Sales, Inc., that as a result of said lease the plaintiff has been notified and requested by the defendants ‘John Kolligian and the agents or officers of the Union Motor Sales, Inc., to vacate said land,’ and that the plaintiff, ‘if compelled to vacate said land * * * and * * * prevented from exercising his option to purchase the said land as set out in the instrument * * * [annexed to the bill of exceptions] will suffer irreparable damage and financial loss.’ There are other allegations which need not be recited.

The plaintiff prays that the defendant Union Motor Sales, Inc., be enjoined from using or occupying said land and be enjoined from ejecting the plaintiff therefrom, that the defendant John Kolligian be similarly enjoined and also enjoined from ‘transferring, conveying, encumbering or in any other way, effecting [sic] the said real estate,’ that the plaintiff's rights in the land be established and the defendants be ordered to execute the necessary papers to convey it to the plaintiff, and for other relief specifically described and for general relief.

The defendants filed a plea in bar alleging that ‘the alleged lease by and under which the plaintiff claims his cause of action arises, was, if in existence, made by one who was without authority, and was therefore illegal and void.’ This plea, according to the record, was ‘sustained after hearing.’ A final decree was entered reciting that the ‘cause came on to be heard * * * upon the plea in bar of the defendants and was argued by counsel,’ and ordering and decreeing ‘that the bill be and hereby is dismissed.’ The plaintiff appealed both from the decree sustaining the plea and from the decree dismissing the bill.

First. It is argued by the defendants that the plea sets up two defences: (a) the nonexistence of the lease relied on by the plaintiff, and (b) that it was ‘made by one who was without authority.’ Since it does not appear that at the trial the form of the plea was challenged on the ground that it was double and, consequently, defective, it is now too late to attack the plea on this ground. Becker v. Zarkin, 292 Mass. 359, 361, 198 N.E. 246. But properly interpreted the plea assumes the existence of the lease and raises only the point of authority in the person making it. Whether the plea was negative or affirmative in character and the burden of proof thereof rested on the plaintiff or on the defendant, the decision that it was ‘sustained after hearing’ imports that the hearing was not on the sufficiency of the plea as matter of law but on the truth of the facts thereby alleged, and that they were determined in favor of the defendant. See Reilly v. Selectmen of Blackstone, 266 Mass. 503, 507, 509, 165 N.E. 660;Becker v. Zarkin, 292 Mass. 359, 361, 198 N.E. 246;Abbott v. Bean, 295 Mass. 268, 269, 3 N.E.2d 762. And the record, which does not set forth the evidence on which this determination of fact was made, or state that no evidence was introduced, and does not narrate the course of proceedings at the hearing on the plea, shows no error in such determination. Statements of counsel made in the briefs and at the argument before us relating to the course of proceedings at such hearing cannot be considered in deciding the case. The matter so stated was not made the subject of an agreement by counsel approved by the trial judge. Even the statements of counsel are not in accord as to the nature of the hearing on the plea. The decree sustaining the plea, therefore, must be affirmed.

Second. The question remains, however, whether the bill of complaint was dismissed rightly. It is provided by Rule 28 of the Superior Court (1932) that ‘If, upon an issue on a plea, the facts pleaded be determined for the defendant, they shall avail him only as far as in law and equity they ought to avail him.’ It is apparent from the terms of the...