254 Mass. 132 | Mass. | 1925
An appeal was entered in each of these cases from an interlocutory decree on a petition for partition of lands on Martha’s Vineyard, wherein the Probate Court ordered a sale of the lands at auction. The cases were previously before this court (250 Mass. 324) and were after-wards again heard in the Probate Court; at that hearing the petitioners asked that partition be made by sale, on the ground that the lands could not be advantageously divided. The judge of probate entered a decree in each case for a sale of the lands, and the respondents severally appealed. The cases are before us because of the refusal of the court to rule in accordance with the respondents’ tenth request; to the exclusion of a certain agreement offered in evidence by the respondents; and because the decrees for sale are alleged to be erroneous. The facts are fully set forth in the previous decision and need not be here repeated.
1. The question raised is whether it is proper to j pin parcels of land owned by different persons, in different proportions, in proceedings for partition. That was decided in substance in Hunnewell v. Taylor, 3 Gray, 111, where it was
Before the enactment of R. L. c. 184, proceedings relating to partition were by writ of partition at common law, or by statute. “The Gen. Sts. c. 136, § 1, which reenacted earlier statutes, — Rev. Sts. c. 103; Sts. 1783, c. 41; 1785, c. 62, § 2; — provided that ‘persons holding lands as joint tenants, copartners, or tenants in common, may be compelled to divide the same, either by writ of partition at the common law or in the manner provided in this chapter; ’ and particular and minute provisions are made for such partition.” Before the enactment of R. L. c. 184, no jurisdiction in equity existed to order partition. Husband v. Aldrich, 135 Mass. 317. Moseley v. Bolster, 201 Mass. 135, 142. R. L. c. 184, § 1 abolished the writ of partition at common law, and provided, in § 2, that such proceedings should be by petition in the Superior Court; and, by § 31, that probate courts should have concurrent jurisdiction with the Superior Court of such petitions if the shares were not in dispute or uncertain. Since the enactment of St. 1910, c. 100, the Probate Court has had jurisdiction in equity over all matters relating to the partition of land, and, in case of sale, over the distribution of the proceeds thereof. St. 1917, c. 279, § 26. G. L. c. 241, § 25.
It is settled that, at common law where there was a misjoinder, the only proper mode of taking advantage of such a defect is by demurrer or motion in arrest of judgment. Under the practice act, it can be done only by demurrer. In the case at bar the respondents did not demur to the petitions but proceeded to trial on the merits; they thereby waived the defect. Barlow v. Leavitt, 12 Cush. 483, 484. Commonswealth v. Dracut, 8 Gray, 455, 458. Hillman v. Whitney, 2 Allen, 268, 269. In the case last cited it was said: “The objection now made by the defendant, that here was a misjoinder of counts, comes too late to be heard. It should have been made by demurrer, or otherwise, before trial.” Bullock v. Hayward, 10 Allen, 460, 462. Marston v. Phipps,
2. The respondents contend that the judge erred in refusing to rule in accordance with their tenth request that “Ownership of the land adjoining the great ponds does not carry with it any exclusive rights to shoot over the ponds which can be considered by the court in deciding the issue before it.” The request embodies a correct statement of the law. No person has any exclusive rights to shoot over the great ponds. It seems plain that that principle was recognized by the judge when he ruled, in accordance with the respondents’ eleventh request, that “The public has a right to pass over the lands of the parties for access to the great ponds for shooting and fishing therein in a lawful manner.” This ruling in substance covered the tenth request. Randall v. Chase, 133 Mass. 210. Commonwealth v. Mullen, 150 Mass. 394, 400. Although a stranger could not lawfully fish or shoot while standing on the land of an abutting owner, yet he has the right to pass over such land to obtain access to the pond, and thereon may fish and shoot in any lawful manner.
3. The judge excluded an agreement between the petitioners and one Look, who was one of the original respondents, but has since deceased. This agreement provided that in case of partition by sale the members of a certain club should buy at the sale the lots owned in common by Look for a price not exceeding $24,000; and that they would then immediately deed to Look the same interests in the land which he formerly owned. The lands referred to in the
4. The appellants’ contention, that the findings and rulings on partition by sale are wrong, is untenable. There was evidence from which it could have been found that the lands described in the petitions had little value except for shooting purposes. There was testimony that ninety per cent of the value of the entire property lies in the shooting privileges. Whether it could be advantageously divided was a question of fact to be decided by the trial judge upon all the evidence, including its value for shooting purposes; it was also for him to decide what damage thereto, if any, would be caused by a physical division. Clough v. Cromwell, supra. The respondents contend that the finding of the judge rests upon evidence as to the effect of a set-off of the entire property, when it should have been based upon the condition and value of each tract; and that no evidence was offered as to the effect of such a set-off. The judge had before him the dimensions of each lot, its location, the various interests of the respective owners, and the evidence that the different tracts were almost wholly valuable for one purpose, namely, for their shooting privileges; and found that the lands owned by all the various tenants in common “will be best served by a sale thereof ...” On this record it cannot be said as
As there was no error of law in the findings or rulings, entry must be
Decrees affirmed.
