Sunter v. Sunter

• Decision Date: 12 January 1910
• Citation: 204 Mass. 448,90 N.E. 561
• Parties: SUNTER et al. v. SUNTER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

204 Mass. 448

90 N.E. 561

SUNTER et al. v. SUNTER.

Supreme Judicial Court of Massachusetts, Suffolk.

January 12, 1910

COUNSEL

T. F. Strange and B. S. Ladd, for appellants.

M. J Jordan and John D. Graham, for appellee.

OPINION

LORING J.

By an interlocutory decree entered pursuant to the rescript of this court dated March 2, 1908 (Sunter v. Sunter, 198 Mass. 137, 84 N.E. 334), this case was recommitted to the master to state the account between the parties. The master's report was filed on January 6, 1909. He found that the net balance due to the defendant from the plaintiffs was $1,516.54.

After the coming in of that report the entry of a final decree was postponed on motion of the plaintiffs to await the appointment of an administrator of the estate of the mother of the plaintiffs and of the defendant, and to give the administrator an opportunity to apply to intervene in this suit. One Berry was appointed administrator of the mother's estate, and later on filed a motion to be allowed to intervene in this suit for the purpose of claiming the fund of $1,516.54, found by the master to be due from the plaintiffs. This was denied. From the order denying this motion for leave to intervene an appeal was taken by the administrator.

No exceptions were taken to the master's report, and on April 1, 1909, a final decree was entered directing the defendant to convey to the plaintiffs two undivided third parts of the premises in question upon their paying to the defendant the sum of $1,516.54, with interest from the date of the filing of the plaintiffs' bill, and giving to the plaintiffs 60 days from the date of the decree in which to elect whether they would or would not make the payment and take the conveyance. The decree further provided that if they did not make the payment the 'bill shall be dismissed.' From this decree the plaintiffs took an appeal.

1. The fund which the master found to be $1,516.54 in amount comes to the defendant as compensation for the buildings put by his mother (under whom he claims title) upon what it now turns out was the land of the plaintiffs more than six years before the filing of the bill. If the deed by the mother to the defendant had been set aside for fraud or otherwise and thereby the same situation had been brought about as would have been the case had the mother died seized of the land, the defendant's right to this fund would have been defeated. But the fund never was the personal property of the mother, and in no event can the administrator of her estate have any claim to it.

2. The defendant has argued that this bill should be dismissed because the 60 days have expired (within which by the terms of the decree entered in the superior court the plaintiffs were to pay to the defendant $1,516.54, with interest, if they elected to take a conveyance of their two-thirds of this land) without that payment having been made. There is nothing in that contention. The plaintiffs had a right to appeal from that decree in order to have the correctness of it passed upon by this court; and on their taking an appeal from it and entering that appeal in this court all proceedings under the decree appealed from were stayed by force of Rev. Laws, c 159, § 19. After an appeal from a final decree a new decree has to be entered whether that decree appealed from was right or wrong. It follows that the failure of the plaintiffs to pay the sum stated to be due within the time specified in the decree is not a bar.

3. There is one error in the decree which should be corrected.

The master found that two-thirds of the value of the buildings put upon the land by the mother was $2,233.33. He next found that the taxes on the land for the period ending with the filing of the bill exceeded the rental value of the land for that period by $107.47. He thereupon charged the plaintiffs with two-thirds of this deficit of $107.47 in addition to two-thirds of $2,233.33, the value of the improvements put upon the land.

If the land had yielded any net rents and profits during this period, the plaintiffs could have set them off against the sum due from them to the defendant for the improvements. That is the rule at law (Rev. Laws, c. 179, §§ 23, 24); and it was decided in Sunter v. Sunter, 190 Mass. 449, 77 N.E. 497, that the rule at law was to be applied in this suit.

But in the case at bar there were no net rents and profits of the land for the period ending with the filing of this bill. On the contrary the taxes on the land exceeded the annual value of it. There is no ground on which the defendant can make the plaintiffs pay in addition to their share of the improvements their share of this loss in carrying the land, although (as we have said) the plaintiffs could have set off against their share of the improvements their share of the net rents and profits if there had been any. This is open on the plaintiffs' appeal, although they took no exceptions to the master's report. See French v. Peters, 177 Mass. 568, 59 N.E. 449; Nelson v. Winchell & Co., 203 Mass. 75, 89 N.E. 180.

4. The plaintiffs' complaint here is that they should not have been required to pay interest from the date of the filing of the bill. As we have said, the master found that the plaintiffs' share of the improvements was $2,333.33, and their share of the deficit for excess of taxes over profits was $71.64, which he added to the value of the improvements making a total sum due from the plaintiffs for the period ending with the date of the filing of the bill, $2,404.97. He found that the plaintiffs' share of the rents of the land and buildings for the period beginning with the day on which the bill was filed and ending with the day of the last hearing before him...