Smith v. Carney

• Decision Date: 24 July 1879
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Arthur A. Smith & others v. Hannah M. Carney

127 Mass. 179

Arthur A. Smith & others v. Hannah M. Carney

Supreme Court of Massachusetts

July 24, 1879

Suffolk. Contract for breach of the covenants in a deed of land from the defendant to the plaintiffs. Answer, a general denial. The case was submitted to the Superior Court, on an agreed statement of facts, which, after stating that the pleadings might be referred to, was in substance as follows:

The defendant, by warranty deed dated December 15, 1873, conveyed to the plaintiffs "one undivided fourth part" of an estate situated on the corner of Pearl Street and Sturgis (now Franklin) Street, in Boston, which deed contained a covenant that "the granted premises are free from all incumbrances." In the deed, Ella F. Smith, Charlotte L Smith and Joseph M. Smith, three of the plaintiffs, were described as minors, and they are still minors. The defendant, as guardian of her minor child, Mary F. Carney under the authority of an order of the Probate Court, by deed dated December 15, 1873, simultaneously with the execution of the above deed, conveyed to the plaintiffs the remaining "three undivided fourth parts" of the same estate without any covenant, except that, as guardian, she had given the bond required by that court. On February 25, 1875, the board of street commissioners assessed to "Benjamin F. Brooks and others, trustees," on estate "Pearl, cor. Franklin," a betterment of $ 150, under the widening of Congress Street. On January 30, 1875, said board assessed to "Joseph Comer, trustee," on estate corner "Franklin and Pearl," a betterment of $ 400, under the widening and extension of Franklin Street. On February 18, 1875, said board assessed to "B. F. Brooks and others, trustees," on estate "Pearl, cor. Franklin," a betterment of $ 150, under the widening and extension of Pearl Street. These assessments were upon the estate in question. The several orders of the board of street commissioners for these widenings were all passed on February 27, 1873, and were duly concurred in by the city council and approved by the mayor. Prior to the passage of the above orders for widening, orders of notice of said widening, and of assessments to be made for betterments thereon, were published in certain Boston daily papers, but none of these publications ever came to the notice of the defendant, and no service, personal or otherwise, of any of the orders was made upon the defendant, or upon any of the parties to whom the assessments for betterments were made, nor did they know of the same. At the time the orders for widening were passed, the defendant was the owner of one undivided fourth part of the estate described in her deed to the plaintiffs, and her minor child was the owner of the remaining undivided three fourth parts thereof, and none of the parties to whom the assessments were made were then or ever the owners or in possession of the estate. The plaintiffs, after the delivery of the deed from the defendant to them, were compelled to pay the above assessments, amounting in all, with interest, to $ 764.98, which sum, with interest thereon, they seek to recover in this action.

If, upon the above facts, the action could be maintained, judgment was to be entered for the plaintiffs for $ 191.25, with interest, or for $ 764.98, with interest, these sums being respectively one fourth and the whole of the assessments paid by the plaintiffs.

The Superior Court ordered judgment for the larger sum and interest; and the defendant appealed to this court.

Judgment for the plaintiffs.

J. H. Young, for the plaintiffs.

B. L. M. Tower, for the defendant.

Soule, J. Morton & Endicott, JJ., absent.

OPINION

Soule, J.

Disability of a plaintiff to sue does not go to the merits of an action, and can be taken advantage of, in pleading, only by plea in abatement. After answer to the merits, proof of the disability at the trial will not avail the defendant. Hayden v. Attleborough, 7 Gray 338. Jaha v. Belleg, 105 Mass. 208. Objections to the form of the action or to the pleadings are not open in a case submitted on an agreed statement of facts, unless specially reserved. Such submission waives all technical objections, and raises only the question whether the plaintiff can recover in any form of action, though the pleadings are referred to. Kimball v. Preston, 2 Gray 567. Cushing v. Kenfield, 5 Allen 307. West Roxbury v. Minot, 114 Mass. 546. When a case is thus submitted, the plaintiff may amend his writ or declaration in any way necessary to put his case in proper form to support the judgment to which the facts entitle him. Merrill v. Bullock, 105 Mass. 486. Folger v. Columbian Ins. Co. 99 Mass. 267. The irregularity in prosecuting this action by the infant plaintiffs in their own names, and without the intervention of a prochein ami, could have been amended if it had been pleaded in abatement; Blood v. Harrington, 8 Pick. 552; and must therefore be regarded as waived by the defendant. It would undoubtedly be more regular that any judgment for the plaintiffs should be rendered in their favor as suing by a next friend, and they ought, before judgment is entered, to obtain leave in the Superior Court to amend their writ accordingly.

The St of 1871, c. 382, under which the betterment was assessed on the estate, provides, in § 6, that all assessments made under it shall constitute a lien on the real estate so assessed, to be enforced in the same manner, and with the like charges for cost and interest, as provided by law for the collection of taxes. It is contended by the defendant, that by the force of this provision an assessment of betterment is void, if, in addition to being made on the proper...