Tobin v. Larkin
| Decision Date | 07 January 1905 |
| Citation | 72 N.E. 985,187 Mass. 279 |
| Parties | TOBIN v. LARKIN et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Knox & Coulson, for appellant Maria Larkin.
Mahoney Crowell & Sullivan, for appellant Patrick J. Lynch.
J. P S. Mahoney and J. P. Sweeney, for appellee.
The plaintiff brought a bill in equity against Maria Larkin Bridget Larkin, and Martin Larkin, praying for a decree of specific performance of a contract for the sale of real estate. At the hearing it appeared that Martin Larkin owned one-twelfth of the estate, and that his two sisters, the other defendants, owned eleven-twelfths of it. The bill was sustained as to the two female defendants for their share of the property, and dismissed as to the other defendant. Pending an appeal by the female defendants, Bridget Larkin died. The defendant Martin Larkin began proceedings in the probate court for a partition of the property, and, without notice to the plaintiff, obtained an order for a sale of it for the purpose of partition. Pursuant to a warrant from that court, a sale was made to Patrick J. Lynch, who is one of the defendants in this supplemental bill. He took possession, and now has a record title to the land. A rescript was sent from the Supreme Judicial Court on the appeal in the first suit, affirming the decree for specific performance. See Tobin v. Larkin, 183 Mass. 389, 67 N.E. 340.
The plaintiff avers that at about the time of the filing of the original bill a notice of lis pendens was filed in the registry of deeds, and further avers that, in addition to this constructive notice, Lynch, as well as the other defendants in the original suit, had actual notice of the litigation. He also says that he had no notice of the proceedings for partition until after the sale, and that the advertisement of sale was purposely framed and published in a manner to afford him no notice, and with the intent to evade the decree on the original bill. The plaintiff prays that he may have the benefit of the original suit, and the proceedings under it, as against the defendant Lynch, and that the order for a decree in the original case 'may be carried into execution as between the parties to this suit, as between the parties to the original suit,' and for other relief. The defendants filed a demurrer, which was overruled, and a decree was entered for the plaintiff that, upon the payment or tender of a specific sum to the defendants or either of them, or to their attorneys of record or either of them, they should execute and deliver to the plaintiff a quitclaim deed of the premises, free from incumbrances made or suffered by them or either of them, and that the plaintiff shall be allowed his costs. From the decree overruling the demurrer, and from the final decree, the defendants appeal.
If the purpose of this bill is to establish the right of the plaintiff to have his share of the proceeds of the sale upon the payment of the sum due under the contract, it is plain that he is entitled to the relief sought. But we infer from the statement, the language of the prayer, from the decree and from the arguments before us, that he desires to set aside the sale, and to have his share of the property without regard to the proceedings for partition. In this view the question is whether the bill states facts that entitle him to this relief. Martin Larkin, who is not joined in this supplemental bill, had a right to have a partition which should give him his share in severalty. O'Brien v. Mahoney, 179 Mass. 200, 60 N.E. 493, 88 Am. St. Rep. 371. The notice of lis pendens and his actual knowledge of the pending litigation did not deprive him of this right. He brought his petition for partition, and, if all the proceedings had been regular, the judgment for partition and for a sale under Rev. Laws, c. 184, § 47, because the land could not be advantageously divided, would have been 'conclusive as to the rights of property and possession of parties and privies to the judgment, including all persons who might by law have appeared and answered,' with certain exceptions which are immaterial to this case. Rev. Laws, c. 184, § 22. Foster v. Abbot, 8 Metc. 596. Hathaway v. Thayer, 8 Allen, 421. Section 47 of this chapter, which relates to sales where the land cannot be advantageously divided, declares that 'the conveyance shall be conclusive against all parties to the proceedings for partition and those claiming under them.' This plaintiff is therefore bound by the proceedings, unless there is ground for setting them aside. By section 4 of this chapter it is provided that ...
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