Smith v. Smith
| Decision Date | 11 November 1889 |
| Citation | 22 N.E. 437,150 Mass. 73 |
| Parties | SMITH v. SMITH. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
C.G.M. Dunham and J. Brown, for appellant.
Braley & Swift, for appellee.
The defendant claims through mesne conveyances, under a deed made by the collector of Cottage City at a tax-sale which is alleged to be defective for several reasons. She does not appear, by any facts, to have been, when the bill was brought, in possession of the demanded premises, which have never been inclosed by permanent bounds or fences; nor does it appear that she, or those under whom she claims, have ever occupied the same. A court of equity, by virtue of its general powers, will entertain a bill to remove a cloud upon a title occasioned by a deed, or similar instrument, which may be vexatiously or wrongfully used to invalidate or throw suspicion upon it, where a plain, complete, and adequate remedy at law does not exist. Martin v. Graves, 5 Allen, 601. Such bills have been often maintained where the title to land has been liable to be affected by deeds given under defective tax-sales. Clouston v. Shearer, 99 Mass. 209, 211; Davis v Boston, 129 Mass. 377; Forster v. Forster, Id 559, 566; Holt v. Weld, 140 Mass. 578, 579, 5 N.E 506; Russell v. Deshon, 124 Mass. 342. The discretionary power given by Pub.St. c. 176, §§ 1, 2, by which, in a proper case, a party may be ordered to bring an action at common law to try his title, has not limited this general authority of courts of equity. Clouston v. Shearer ubi supra. Whether, therefore, the contention of the defendant that a petition under Pub.St. c. 176, and under St.1889, c. 442, can only be brought in this court is correct or not is unimportant, as the bill was properly brought in the superior court, under the general equity powers conferred upon it by St.1883, c. 223. Nor can the defendant's contention that this bill cannot be maintained because it was not brought within five years from the tax-sale be sustained. She bases this upon Pub.St. c. 12, § 66, which provides that, "in all cases of the taking or sale of land for the payment of taxes assessed thereon, the supreme judicial court shall have equity powers, if relief is sought within five years from the taking or sale." In Mitchell v. Green, 10 Metc. 101, it had been held, although before the statute giving full equity jurisdiction to this court, that it had no...
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