Norris v. Anderson
| Decision Date | 19 May 1902 |
| Citation | 181 Mass. 308,64 N.E. 71 |
| Parties | NORRIS v. ANDERSON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
The following is the report made by the superior court:
'This was a writ of entry, in which the demandant sought to recover from the tenant certain premises on Wood street, in the city of Woburn. The case was tried before the court without a jury. The tenant claimed title to the premises under a deed running from one John Kovarik, of Woburn, to the tenant, which deed was dated October 27, A. D. 1899. The demandant claimed title under a sheriff's deed dated February 14, 1900, and by virtue of an attachment made in the suit of one Alexander Ellis against the grantor of the tenant, which attachment was made on October 16, A D. 1899. The evidence tended to show that John Kovarik, the grantor of the tenant, on the 28th day of September, 1899 orally agreed to convey to the tenant the premises in question, the deed to be delivered to the tenant on October 16th; that on October 16th the time for passing papers between the said John Kovarik and the tenant was postponed to October 27th, at which time the tenant took a deed from John Kovarik. The tenant, before taking the deed, employed one W. J. Hennessey, an attorney at law, to examine the records, and to pass upon the question of the title which the said John Kovarik was to convey to the tenant. Mr Hennessey examined the records in the registry of deeds in the county of Middlesex, and reported, among other things, that the property was free from attachment; and, as a result of his investigation and report, the tenant took the deed from John Kovarik, reciting that the property was free from any incumbrances by way of attachment. It appeared, however, that one Alexander Ellis had brought a suit returnable before the Fourth district court of Eastern Middlesex, in which the defendant was named as John Kavarik, the writ being dated October 13, 1899, and on this writ Walter C. Wardwell, a deputy sheriff for said county of Middlesex, made an attachment, and stated in his return that on October 16, 1899, he had attached all the real estate of John Kavarik in the South district of the county of Middlesex, in which district Woburn is situated, and that within three days thereafter he had deposited in the registry of deeds for the Southern district of the county of Middlesex a certified copy of said writ, with so much of his return thereon as related to said attachment. Said writ was returnable to the Fourth district court of Eastern Middlesex on the 9th day of December, 1899. On the return day the plaintiff named in that writ, Alexander Ellis, by his attorney, George W. Norris, the demandant in this case, moved to amend his writ by changing the name of the defendant from 'Kavarik' to 'Kovarik,' and this motion was allowed by the court without notice to any other person interested. It appeared also that Kovarik, who was the grantor of the tenant, was the defendant actually sued and served upon, and had actually received notice of the said suit by the said Alexander Ellis, in which suit he was named 'Kavarik.' It appeared, also, that the tenant was not aware of the inception of the suit, of the amendment made on the date of entry, or of the fact that there was a claim by any one that the attachment existed on the property of his said grantor, John Kovarik. It appeared without contradiction that in the records of attachments in the Southern district of Middlesex county on October 27, 1899, there was a page in the book of attachments at the head of which appeared the name 'Kovarik,' and neither on this page nor on any other page in the book of attachments was there any record of any attachment having been made on the property of any person under the name of 'Kovarik.' Mr. Hennessey, who had examined the records, and reported to the tenant that there was no attachment on the property of any Kovarik made in the year 1899, had his attention called to the claim of the demandant some time after the entry of the suit of Alexander Ellis in the Fourth district court by his client handing to him the letter, a copy of which is annexed, marked 'Exhibit A,' and immediately repaired to the Middlesex registry of deeds to verify the report which he had made before, and, on finding the condition to be the same as he had reported to his client, the tenant notified the demandant of his action, and of the fact that there had been no attachment made on the property of Kovarik, whereupon the demandant wrote to Mr. Hennessey a postal card, a copy of which is annexed, marked 'Exhibit B,' telling him to look under the name spelled 'Kavarik,' and he would find a record of an attachment made in favor of Alexander Ellis. On the receipt of this postal card, Mr. Hennessey repaired again to the Middlesex registry of deeds (Southern district), and on a page more than forty pages in advance of the page set apart for attachments against the property of persons named 'Kovarik' found a page on which a place had been set apart for attachments of property of persons by the name of 'Kavarik,' and there found a record of the attachment upon the writ aforesaid filed within three days after October 16th, which this demandant based his claim to the premises in question upon. It further appeared that the suit of Ellis against the tenant's grantor was brought upon a promissory note signed by said grantor, and that the error in spelling the name of the defendant was due to an erroneous reading of the signature to the note; that the mistake in spelling the name was innocently made, and with no intent to mislead or deceive any one; that, although he had actual notice of the suit, and called and talked with the demandant about it, the tenant's grantor entered no appearance in the action, and suffered it to be defaulted; that judgment was entered against him on such default, and execution was duly issued on said judgment; that the premises in question were sold on said execution to this demandant, and the proceedings on said sale were in conformity with the requirements of the statutes in such cases. It further appeared that the tenant had been in possession of the premises ever since the date of his deed, and that the fair rental value of the premises was two hundred dollars per year. Upon all these facts the tenant asked the court to rule as follows: (1) On all the evidence a verdict should be ordered for the tenant. (2) The amendment to the writ in favor of Ellis, plaintiff, against Kavarik, vacated the attachment. (3) The name 'Kovarik' is not the same name as the name 'Kavarik.' (4) The records of attachments in the registry of deeds were not sufficient in law to create an attachment on the property of Kovarik, and the defendant, Anderson, took title free from the attachment on which the levy and sale were based. (5) The estate of Kovarik, if ever attached, was not under legal attachment on October 29, A. D. 1899, in favor of Ellis. (6) The levy and sale on the execution were not sufficient in law to give title to the demandant as against the defendant, Anderson. (7) The title of the defendant, Anderson, is good as against any one claiming under the alleged attachment of October 16, 1899, on the writ in favor of Ellis and under the judgment, levy, execution, and sale put in evidence in this case. (8) The amendment to the writ in the case of Ellis v. Kovarik was in the nature of the introduction of a new party. (9) No notice of the amendment to the writ having been given to the tenant, he cannot be affected by it. The finding of the court was as follows:...
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