Provident Institution for Sav. v. Burnham

• Decision Date: 05 March 1880
• Citation: 128 Mass. 458
• Parties: Provident Institution for Savings v. Louis W. Burnham
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

128 Mass. 458

Provident Institution for Savings v. Louis W. Burnham

Supreme Court of Massachusetts

March 5, 1880

[Syllabus Material]

Suffolk. Writ of entry, dated December 10, 1878, to recover a parcel of land in Boston, with an ad damnum of $ 12,000. The demandant, in its declaration, alleged that, "being seised of said premises in fee within twenty years now last past, it ought to be in quest possession thereof, but the said tenant hath since unlawfully entered and holds the demandant out." Plea, nul disseisin. No replication or joinder of issue was filed.

The Superior Court, at April term 1879, came in on April 1, and on May 9, when this case was called for trial, had actually been in session twenty-eight days, and the same persons had been serving as jurors during all this time. The tenant interposed the following challenge to the array: "And now comes the said Louis W. Burnham, in his proper person when the jury is about to be empanelled to try the issue in the above-entitled cause, and says that the said jury is an illegal jury, and each juror drawn is not a legal juryman and not competent to serve otherwise, because more than thirty days have elapsed since said jury was first empanelled to try causes at this present term, and more than thirty consecutive days have elapsed since each and every juryman upon said panel entered upon the first day of his service at this term, and that each and every of said jurors has served more than thirty days this term, if the time of service is legally computed." No replication to this challenge was filed, nor was any suggestion made that issue had not been joined on the challenge, but it was immediately overruled by Bacon, J., upon its being read.

At the trial, one Brown testified that he was clerk of the plaintiff corporation, and that two books which he produced were the records of the corporation kept by him. These books were not otherwise offered in evidence; but no objection was made to them as not being in evidence until the motion for a nonsuit, as hereinafter mentioned; and they remained on the witness stand during the trial, and were taken into the juryroom without the knowledge of the tenant.

The demandant put in evidence the following deeds: 1st. A mortgage deed dated July 8, 1871, with condition for the payment of $ 10,000 in five years, with interest, from Joseph Swallow to "the Provident Institution for Savings in the town of Boston, a corporation established by authority of the Commonwealth of Massachusetts," of the parcel of land described in the writ, "with all rights, easements, privileges and appurtenances to the same belonging, and subject to the restrictions set forth in the original deed from the Boston Water Power Company, recorded with Suffolk deeds, lib. 843, fol. 98." 2d. A deed from the tenant, dated April 2, 1877, reciting that "the Provident Institution for Savings in the town of Boston" is the holder of that mortgage (describing it), and that the tenant, being the owner of the equity of redemption, "has requested the said corporation" to grant further time for the payment of the mortgage debt; and that the "said corporation" has agreed to extent the time; and by which the tenant covenanted with the "said corporation" to pay the mortgage debt at the expiration of the extended term, together with accrued interest and any moneys paid by the "said corporation for taxes, insurance and other necessary charges on the mortgaged premises."

There was no other evidence that the demandant was a corporation, and no evidence as to the rights, easements, privileges, appurtenances and restrictions mentioned in the mortgage.

The tenant introduced no testimony, but rested his case upon the demandant's evidence, and asked the judge to direct a nonsuit for the following reasons: "The demandant has not proved a better title in itself. First. Because it has not shown or attempted to prove its own corporate existence. Second. Because the two books (about which the witness Brown was interrogated) were not themselves offered in evidence. Third. Because there is a fatal variance between the writ and declaration and the Swallow mortgage in the description of the property which is the subject of the action. Fourth. Because at the time the demandant closed its evidence and rested its...