Vincent v. Plecker

• Decision Date: 13 May 1946
• Citation: 319 Mass. 560,67 N.E.2d 145
• Parties: VINCENT v. PLECKER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

319 Mass. 560

67 N.E.2d 145

VINCENT

v.PLECKER et al.

Supreme Judicial Court of Massachusetts, Essex.

May 13, 1946.

Appeal from Superior Court, Essex County; Pinanski, Judge.

Suit by Frank X. Vincent against Mary Rose Plecker and another for cancellation of a deed from defendant town to individual defendant and for a declaration that neither defendant has any title.From interlocutory decrees sustaining the demurrers of each defendant and a final decree dismissing the complaint as to individual defendant, plaintiff appeals.

Interlocutory and final decrees as to individual defendant affirmed.R. E. Burke and E. E. Crawshaw, both of Newburyport, for plaintiff.

B. J. Lojko, of Newburyport, for defendant Plecker.

Before FIELD, C. J., and LUMMUS, QUA, DOLAN, and SPALDING, JJ.

LUMMUS, Justice.

With some difficulty the material allegations of fact can be extracted from the bill.On December 31, 1940, the defendant Plecker owned and lived upon a lot on the westerly side of Baker Street in Amesbury, numbered 33 on a certain plan recorded in the registry of deeds.To the north of that lot were lots numbered 34 and 35 on that plan, both of which had been taken on December 20, 1938, by the town of Amesbury for nonpayment of taxes, but rights of redemption evidently had not been foreclosed, because two years from the taking had scarcely expired.G.L.(Ter.Ed.)c. 60, §§ 65, 79.The bill does not allege that the plaintiff had any interest in those lots that would entitle him to redeem.G.L.(Ter.Ed.)c. 60, § 62, as amended.

About December 31, 1940, the plaintiff told the defendant Plecker that he intended to buy lots 34 and 35, and she pointed out the boundaries to him.On that day he paid the defendant town $60 and redeemed those lots from the tax taking receiving from the town treasurer an instrument in the form prescribed by G.L.(Ter.Ed.)c. 60, § 62, as amended, acknowledging satisfaction of the tax for which the lots were taken and held.Believing, as the defendant Plecker knew he believed, that he was the owner of those lots, he improved them by cultivation for several years, and improved a cow stable and a hog house on one of them.

On May 23, 1944, the defendant Plecker for $10 obtained a deed from the town treasurer, acting on behalf of the defendant town, purporting to convey to her the same two lots.The defendant Plecker then claimed those lots as against the plaintiff.

The bill prays for a cancellation of the deed to the defendant Plecker, and for a declaration that neither she nor the defendant town has any title.

Each defendant demurred to the bill, and the demurrers were sustained by an interlocutory decree entered June 4, 1945.The plaintiff appealed ‘from the interlocutory decree * * * whereby the demurrer of the defendant Plecker was sustained.’On December 13, 1945, a decree, called a final decree, was entered, dismissing the bill‘as to the defendantMary Rose Plecker.’Why the bill was not dismissed in its entirety, we cannot imagine.The plaintiff appealed from that last mentioned decree.

The case against the defendant Plecker is based primarily upon estoppel.If she had owned the two lots in question, and had knowingly permitted the plaintiff to buy them from the town, without disclosing her own title, doubtless she would be estopped to set up her title against him.Raldne Realty Corp. v. Brooks, 281 Mass. 233, 183 N.E. 419;Looney v. Trimount Theatres, Inc., 282 Mass. 275, 184 N.E. 683.But at the time the defendant Plecker had no title.She had no concern with the sort of title the plaintiff intended to acquire.If he should acquire a poor title, nothing in her conduct estopped her to acquire a better one and dispossess him.Moreover, on the allegations of the bill, he never acquired any title but merely discharged a tax taking.Whether the defendant Plecker herself acquired any title is not before us.But her demurrer was rightly sustained.

The bill does not disclose any right to relief against the defendant town, unless it be to have corrected a mistake in the description of the lots in the instrument given to the plaintiff by the town treasurer, which instrument appears to have been incapable of conveying title to the plaintiff even when corrected.No joint wrong on the part of the defendants is alleged.But so long as the bill remains alive as against the defendant town, it may possibly be amended.G.L.(Ter.Ed.)c. 231, §§ 51, 52, 144;Merchants' Bank v. Stevenson, 7 Allen 489;Rule 123 of the Superior Court(1932).

The so called final decree dismissed the bill‘as to the defendantMary Rose Plecker,’ and said nothing about the defendanttown of Amesbury.In Rubenstein v. Lottow, 220 Mass. 156, 161, 107 N.E. 718, 720, we said that where in a suit in equity ‘one of several claims is not allowed, the proper way of dealing with it is to dismiss the bill so far as that claim is concerned or not to refer to it (the decree) at all.’See alsoNashua & Lowell Railroad v. Boston & Lowell Railroad, 164 Mass. 222, 41 N.E. 268,49 Am.St.Rep. 454;Faulkner v. Lowell Trust Co., 285 Mass. 375, 377, 189 N.E. 215.Whether a decree dealing with one defendant could ever impliedly though irregularly dismiss the bill as to another need not be considered, for in this case the implication from the decree is that the bill is retained against the defendant town.

Our jurisdiction is based upon an appeal from the decree that dismissed the bill as to one defendant while retaining it as against the other.Even if that decree was not final but interlocutory, it was of course appealable, like the interlocutory decree sustaining the demurrers, under G.L. (Ter.Ed.)c. 214, § 26.But if merely interlocutory, an appeal from it would lie dormant until brought up with an appeal from the final decree, and could not be brought here by itself.¹Orth v. Paramount Pictures, Inc., 311 Mass. 580, 42 N.E.2d 524;Lowell Bar Association v. Loeb, 315 Mass. 176, 187, 188, 52 N.E.2d 27.Since no further decree has been entered, unless the decree dismissing the bill as to the defendant Plecker was itself a final decree, the case is not properly before us at this time upon an appeal from that decree.Therefore we must consider whether that decree was a final decree appealable as such under G.L.(Ter.Ed.)c. 214, § 19.

An attempt to draw conclusions from the mere words ‘final decree’ may lead to confusion.Indeed, no simple yet precise test has ever been found by which to distinguish between final and nonfinal, or interlocutory, decrees.United States v. 243.22 Acres of Land in Town of Babylon, 2 Cir., 129 F.2d 678, 680.Usually, it is true, a suit in equity ought to end in a single decree that ‘is a definitive determination of the rights and liabilities of the parties with respect to the controversy presented by the pleadings' and ‘exhausts the power of the court over the merits of that controversy,’ with certain recognized exceptions.Lowell Bar Association v. Loeb, 315 Mass. 176, 188, 52 N.E.2d 27, 36; and cases cited.Blume v. Oil-O-Chron, Inc., 287 Mass. 52, 55, 191 N.E. 131;Kennedy v. Shain, 288 Mass. 458, 460, 192 N.E. 924;Monotype Composition Co., Inc., v. Kiernan, 319 Mass. 456, 66 N.E.2d 565.But no invariable rule to that effect is implied in the words ‘final decree.’The word ‘final’ denotes merely a decision, or at least a disposition, subject to appeal, of a particular controversy, and contains no implication that no further judicial action can or will be taken in the case.Frequently supplementary decrees are required, and these may themselves be additional final decrees and appealable as such.Seder v. Kozlowski, 311 Mass. 30, 33, 36, 40, 40 N.E.2d 14;General Heat & Appliance Co. v. Goodwin, 316 Mass. 3, 5, 54 N.E.2d 676;Godard v. Babson-Dow Manuf. Co., 319 Mass. 345, 65 N.E.2d 555.

Even apart from such supplementary decrees, it is not true that every suit in equity must end in a single final decree.²Where there is but a single controversy in the case, it is true that a decree that leaves a part of that controversy undecided or that leaves undecided the rights and liabilities of one or more of the parties to it, is interlocutory and not final.Kingsley v. Fall River, 280 Mass. 395, 398, 399, 182 N.E. 841;Blume v. Oil-O-Chron, Inc., 287 Mass. 52, 55, 191 N.E. 131;Cummings v. Tolman, 292 Mass. 56, 60, 197 N.E. 476, 101 A.L.R. 1457;Leffler v. Todd, 308 Mass. 243, 31 N.E.2d 521;Collins v. Miller, 252 U.S. 364, 370, 40 S.Ct. 347, 64 L.Ed. 616;Arnold v. United States for Use of W. V. Guimarin & Co., 263 U.S. 427, 434, 44 S.Ct. 144, 68 L.Ed. 371;United States v. Florian, 312 U.S. 656, 61 S.Ct. 713, 85 L.Ed. 1105, reversingFlorian v. United States, 7 Cir., 114 F.2d 990;Baker v. Old National Bank, 3 Cir., 91 F. 449;Bush v. Leach, 2 Cir., 22 F.2d 296;Atwater v. North American Coal Corp., 2 Cir., 111 F.2d 125;Kuhn v. Canteen Food Service, Inc., 7 Cir., 150 F.2d 55;Boxwell v. Greeley Union National Bank, 89 Colo. 574, 5 P.2d 868, 80 A.L.R. 1179, and note.There is, however, an exception to that rule.³

But a suit in equity may comprise many distinct and unrelated controversies, each separable from the others.Striking instances of separable controversies occur in receivership proceedings in which intervening petitions present a wide variety of controversies that have no relation to the case made by the bill and little or no relation to each other except that they concern in some way the assets of the receivership.A decree that determines one of such obviously separable controversies is a final decree.Rogers v. Boston Club, 205 Mass. 261, 265, 91 N.E. 321, 28 L.R.A.,N.S., 743;Cambridge Savings Bank v. Clerk of Courts, 243 Mass. 424, 137 N.E. 872;Plumer v. Houghton & Dutton Co., 277 Mass. 209, 213178 N.E. 716;Id., 281 Mass. 173, 174, 183 N.E. 266;Check v. Kaplan, 280 Mass. 170, 175, 176, 182 N.E. 305;Kingsley v. Fall River, 280 Mass. 395, 399, 400, 182 N.E. 841;City of Boston v. Lynch, 304 Mass. 272, 274, 23 N.E.2d 466;...