Moseley v. Moseley
| Decision Date | 14 October 1921 |
| Citation | 240 Mass. 1,132 N.E. 417 |
| Parties | MOSELEY v. MOSELEY et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Probate Court, Hampden County.
Petition by Harry K. Moseley against George O. Moseley and others. From a decree dismissing the petition, petitioner appeals. Affirmed.
J. Lyman Gray and Raymond T. King, both of Springfield, for appellant.
Clinton E. Bell, of Springfield, for appellee Moseley.
Frederic A. Ballou, of Springfield, for appellee Parker.
This is a petition in the probate court for Hampden county, dated March 21, 1921, wherein the petitioner prays that Robert C. Parker, a commissioner appointed to make partition of certain real estate by sale, be ordered to pay the petitioner the amount of an execution and the interest thereon out of the funds in his hands belonging to the respondent, George L. Moseley. The petition alleges that on December 15, 1920, Parker was appointed commissioner to make partition of certain real estate among tenants in common ‘whose names are all the parties to this bill in equity’; that the estate was sold January 12, 1921, for $5,450, and this money was paid to Parker; that the sum of $2,725 represents the share of the respondent George L. Moseley; that on December 6, 1920, in the superior court for Hampden county, the petitioner recovered judgment against George L. Moseley, and execution was issued thereon January 14, 1921, in the sum of $1,050.10; that an attachment of real estate was made in this action and was set forth in the petition for partition sale, under which Parker was appointed commissioner; that on January 14, 1921, a deputy sheriff presented the executionto Parker for payment out of the funds in his hands belonging to George L. Moseley, and payment was refused; that said execution has not been paid and George L. Moseley is indebted to the petitioner for the amount of said execution and interest thereon. The respondent Parker demurred to the petition. A decree was entered sustaining the demurrer and dismissing the petition. From this decree of the probate court the petitioner appealed.
Under St. 1917, c. 279, § 30, now G. L. c. 241, § 28:
‘A person having a mortgage, attachment or other lien on the share of a cotenant shall be concluded by the decree, so far as it relates to the partition and the assignment of the shares; but his lien shall remain in full force upon the part assigned to or left for such cotenant, or, in the event of a sale, upon the share of such part owner in the proceeds, and may be enforced in the manner provided in section 19.'
By section 19 of this statute, if partition is made by sale, a remedy is given by petition in equity in the probate court before payment is made, but in order for the petitioner to avail himself of this remedy he must at the time have a mortgage, attachment or other lien on the share of the cotenant. The final judgment in favor of the petitioner was entered December 6,...
To continue reading
Request your trial
-
Foster v. Evans
...over this statutory action to reach and apply to the Supreme Judicial and Superior Courts, and we so held in Moseley v. Moseley, 240 Mass. 1, 132 N.E. 417 (1921). The subsequent enactment of St.1963, c. 820, § 1, which gave the Probate Court jurisdiction over "all cases and matters of equit......
-
Geen v. Old Colony Trust Co.
...the probate court had no jurisdiction of a suit to reach and apply property of the debtor to the payment of his debt. Moseley v. Moseley, 240 Mass. 1, 3, 132 N.E. 417. Such a suit is not within the scope of general jurisdiction. Stockbridge v. Mixer, 215 Mass. 415, 417, 102 N.E. 646; Todd v......
-
McGrath v. Worcester County Nat. Bank
...dissolved. Hardy v. Safford, 132 Mass. 332, 335 (1882). Whittemore v. Swain, 198 Mass. 37, 40, 84 N.E. 307 (1908). Moseley v. Moseley, 240 Mass. 1, 3, 132 N.E. 417 (1921). Horn v. Hitchcock, 332 Mass. 643, 644--645, 127 N.E.2d 482 (1955). By contrast, the forty-day period in G.L. c. 236, § ......
-
Horn v. Hitchcock
...v. Heywood, 118 Mass. 514, 516; Hardy v. Safford, 132 Mass. 332; Whittemore v. Swain, 198 Mass. 37, 40, 84 N.E. 307; Moseley v. Moseley, 240 Mass. 1, 3, 132 N.E. 417. See Hunneman v. Lowell Institution for Savings, 205 Mass. 441, 444-445, 91 N.E. 526. As to the analogous situation of an att......