Welsh v. Briggs

• Decision Date: 21 February 1910
• Parties: WELSH v. BRIGGS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

204 Mass. 540

90 N.E. 1146

WELSH v. BRIGGS.

Supreme Judicial Court of Massachusetts, Suffolk.

February 21, 1910

COUNSEL

Joseph Bennett, Harry Bergson, and William A. Parker, for petitioner.

B. F Briggs, for respondent.

OPINION

LORING J.

The petitioner, Willard Welsh, brought a petition in the land court to register his title as owner in fee of three contiguous lots of land situate in the city of Boston.

In accordance with Rev. Laws, c. 128, § 29, the application was referred to an examiner. The examiner made an adverse report. But the petitioner elected to proceed and the case was referred to a master as contemplated by the fifteenth rule of that court.

The master made a report at some time before January 22, 1908. Ten exceptions were taken to the master's report. It is stated in the decision of the land court, made part of the bill of exceptions now before us, that 'the exceptions are somewhat loosely drawn and it is not always clear just what ruling of the master or to what objection thereto they refer, but it is clear that all of the matters intended to be covered by the exceptions were made the subject of objection.'

The exceptions to the master's report came on to be heard by the land court at some time before January 22, 1908, and on January 22, 1908, they were overruled.

At some subsequent date the defendant filed a bill of exceptions which was allowed by the judge of the land court on September 8, 1908. In this bill of exceptions the defendant states that she appeals from the 'opinions, rulings, refusals to rule, directions or judgments of the court in matters of law' set forth in the bill of exceptions.

Rules 16 and 17 of the land court adopt the same method of objecting and excepting to a master's report as that set forth in chancery rules 31 and 32 of this court. Rev. Laws c. 128, § 13, provides that 'questions of law arising in the court of land registration on any decision or decree may be taken by any party direct to the Supreme Judicial Court for revision, in the same manner as questions of law are taken to that court from the superior court.' The proper method of taking to this court questions of law arising from an order of the land court overruling exceptions to a master's report is by an appeal and not by bill of exceptions. See O'Brien v. Keefe, 175 Mass. 274, 56 N.E. 588. Although it can be done by way of a bill of exceptions. McCusker v. Geiger, 195 Mass. 46, 80 N.E. 648; Kennedy v. Welsh, 196 Mass. 592, 83 N.E. 11. When an appeal is taken from an order of the court overruling or sustaining exceptions to a master's report, the whole record is before the appellate court and it can dispose of the case by directing what the final decree is to be. But where the correctness of the order of the court overruling or sustaining exceptions to a master's report is brought up by a bill of exceptions, the case has to go back to the inferior court for further hearing.

Most of the exceptions set forth in this bill of exceptions are exceptions to the action of the land court in overruling exceptions taken to the master's report. The exceptions taken to the master's report are not altogether reconcilable in some instances with the statement of them in the bill of exceptions.

Dealing first with the exceptions taken to the master's report:

1. It was of no consequence whether the evidence as to the oath actually administered to the assessors was rightly admitted or not. There is enough in the record to show that the assessors who laid the assessment on which the tax deeds relied on by the petitioner were founded were officers de facto. So far as the validity of their action is concerned there is no difference between an officer de facto and an officer de jure. See Commonwealth v. Wotton, 201 Mass. 81, 84, 87 N.E. 202.

2. The next exception is that the master had no right to find that the assessment under which the three lots of land here in question were sold was made by the board of assessors. One Kendall testified that Hichborn 'was appointed assessor May 16, 1898, and took said oath as recorded, May 17, 1898, was the assessor for ward 25, who with Ben. M. Fisk as first assistant, and Pat. F. Carley as second assistant, assessed these three lots May 1, 1898, said Fisk being the local man and having all the say.' It is stated that the assessment of these three lots 'appears on the assessors' books.' This must be taken to mean that these assessments were entered on the books specified in Pub. St. 1882, c. 11, §§ 50-54. The master was right in ruling that this warranted a finding that the assessment was made by the board of assessors as a whole, or a majority thereof, in spite of Kendall's testimony. The true explanation of Kendall's testimony could be found to be that the board adopted the report of the committee.

3. The next exception is to the finding by the master that the board of assessors duly committed to the collector of taxes the tax list of 1898 with their warrant. The defendant's contention in this connection is that Rev. Laws, c. 12, § 56, requiring the book in which the assessments are made to be deposited in their office for public inspection was not complied with. We assume that the defendant meant that Pub. St. 1882, c. 11, § 50, now Rev. Laws, c. 12, § 56, were not complied with for the Revised Laws did not go into effect until several years after these taxes were assessed. Of this it is enough to say that there is nothing to show that Pub. St. c. 11, § 50, was not complied with. The evidence on which the master made his findings is not before us. The burden is on the excepting party to show error. This exception was rightly overruled.

4. The next exception is to the refusal of the master to rule that one who holds a mortgage as collateral can foreclose it. This was refused by the master, 'it being inconsistent with my findings.' What the 'findings' were which are here referred to by the master is not plain. The bill of exceptions sets forth the body of the examiner's report, but the sheets referred to in it are not given, and for that reason the facts as to the title found by the examiners do not appear. The examiner reported that the title to lot 24 was in Michael Barrett on May 1, 1898, to whom the tax was assessed in 1898 for nonpayment of which that lot was sold to the petitioner. It is stated in the bill of exceptions that this title in Barrett originated in a deed by the owner made in 1874 and a mortgage back by the grantee. We infer that this owner was one Sparhawk. It is further stated in the bill of exceptions that on September 3, 1874, Sparhawk assigned this mortgage to one Woodward 'as collateral' and on July 30, 1875, caused a caveat to be recorded in which he claimed that he never made a valid assignment of the note or mortgage here in question. At some time Woodward (to whom Sparhawk assigned the mortgage 'as collateral') assigned it absolutely, 'and it was by virtue of this assignment that Solomon Howes made the foreclosurer the examiner called 'valid"--to quote the words of the bill of exceptions. But it is stated in the bill of exceptions that 'Howes had also obtained an assignment of said mortgage from the assignees in bankruptcy of said George Sparhawk, which he recorded with his deed for said foreclosure,' to quote again from the bill of exceptions. If the title which Howes got by assignment to him by Woodward of the mortgage to Sparhawk and the foreclosure made under it or either of them was invalid because Woodward held the mortgage only as collateral, Sparhawk was the person and the only person who could complain of that invalidity and the right to make that complaint passed to his assignees in bankruptcy and was assigned by them to Howes. The question of law put forward by the defendant was therefore immaterial and this exception must be overruled.

5. The next exception is to the finding of the master on the testimony set forth in the bill of exceptions that no valid mortgage existed in 1905, when the administrator of one Woodward assigned to...