Tyndale v. Stanwood
| Decision Date | 20 May 1904 |
| Citation | 71 N.E. 83,186 Mass. 59 |
| Parties | TYNDALE v. STANWOOD. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Robert M. Morse, Wm. H. Leonard, and Chas. H. Hanson, for plaintiff.
Stephen H. Tyng and James P. Prince, for defendant.
This is a writ of entry, brought under Rev. Laws, c. 146, § 17, by the administrator of the estate of Isabella S. Whicher lately deceased, to obtain possession of certain land which is alleged to have been fraudulently conveyed to the tenant and which the plaintiff declares he has been licensed to sell. The chief question is whether at the time the action was brought there was any operative license to sell.
The facts material to this question may be briefly stated. After prolonged litigation (see Bank v. Whicher, 173 Mass 517, 53 N.E. 1004, 73 Am. St. Rep. 317; Bank v. Tyndale, 176 Mass. 547, 57 N.E. 1022; Id., 179 Mass. 390, 60 N.E. 927) a claim in favor of a national bank was finally established against the estate, whereupon the administrator represented that the estate was insolvent; commissioners were appointed, before whom this claim was proved; the administrator filed in the probate court a petition for leave to sell the land in question to pay debts and charges of administration, and on April 16, 1902, the court entered a decree granting the license. From this decree an appeal was taken and entered in this court as the supreme court of probate, and a hearing was had before a single justice, who ordered a decree affirming the decree of the probate court, which decree thus ordered was transmitted to and filed in the probate court on the same day in which, though before, the present action was brought. Exceptions were taken by the appellants, one of whom was this tenant, to various rulings made at the hearing before the single justice, and also to the order affirming the decree of the probate court. The record before us states that these exceptions were all overruled by the full court by its rescript, and dated and filed January 26, 1903. An examination of the papers in that case, including the written opinion of the full court, however, shows that, while the exceptions were considered and found unsound, the language of the rescript was simply, 'Decree affirmed.' It therefore appears that at the time this present writ issued exceptions taken at the hearing before the single justice, and also to his order affirming the decree of the probate court, although not yet formally allowed, were still pending; and the question is whether, under this state of things, there was any operative license at the time the writ issued. While the appeal from the probate court did not bring to this court the whole case, and did not invalidate anything there done under the decree prior to the appeal, if the decree was finally affirmed by this court, yet it brought here the whole question, including both law and fact, whether the decree was wrong for any of the reasons assigned by the appellants, and suspended its operation until the determination of the appeal by this court. Gale v. Nickerson, 144 Mass. 415, 11 N.E. 714; Rev. Laws, c. 162, § 16. It therefore becomes necessary to consider the effect of the proceedings in this court at the stage in which they were at the time this writ issued.
At common law, a writ of error, so far as based upon an error at law, lay only when the error was apparent on the record. Inasmuch as rulings made during the trial did not so appear St. 13 Ed. I, c. 31, was passed, which allowed a party to state in writing his exception to any rulings, including those not otherwise theretofore made matter of record, which, when signed and sealed, became a part of the record; and the ruling thus excepted to could then be revised on writ of error. See Cogswell v. Dolliver, 2 Mass. 217, 3 Am. Dec. 45, for an instance of this. It is obvious that under this practice the case went to judgment notwithstanding the exceptions, and the proceedings, if stayed at all, were not stayed by the bill of exceptions, but by the writ of error. But, to avoid the inconvenience of this practice, a more summary method of raising questions of law was early adopted in this state, upon which our present practice is based. Authority for this summary method of raising and disposing of questions of law is first found in the statute which authorized terms of this court to be held by a single justice. It provided that whenever the court should be held 'by any two or one of the justices thereof, it shall be lawful for any party thinking himself aggrieved by any opinion, direction or judgment of the said justices, or either of them, in any action or process of a civil nature, to allege exceptions to the same; * * * and such exceptions being reduced to writing in a summary mode and presented to the court before the adjournment * * * without day and found conformable to the truth * * * shall be allowed and signed by presiding justice, * * * and thereupon all such actions or proceedings in or upon which judgment shall not have been entered at the time of allowing such exceptions shall be continued to' the term held by the full court; and also 'such actions or processes...
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