Vincent v. Plecker

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

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.

[67 N.E.2d 146]

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 defendant Mary 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

[67 N.E.2d 147]

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 defendant Mary Rose Plecker,’ and said nothing about the defendant town 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 also Nashua & 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...