Colby v. Shute

219 Mass. 211 | Mass. | 1914

Braley, J.

The original assignee held the reversionary interest of the insolvent debtor, subject to the outstanding life estate. Pub. Sts. c. 157, § 46. And the failure to record the assignment as required by § 45 did not affect the title. The first publication of notice of the issuing of the warrant under § 46, as held in Hall v. Whiston, 5 Allen, 126, 128, was “ constructive notice to all the world of the change in the debtor’s rights and title.” It is immaterial, also, that the land had not been listed in the debtor’s schedule of assets, or that no actual entry ever had been made. Austin v. Cambridgeport Parish, 21 Pick. 215, 224. Hall v. Whiston, 5 Allen, 126, 130. Pub. Sts. c. 173, § 3.

The life estate terminated on September 22, 1894. But, without having taken any steps to assert his title, the assignee died on November 21,1897, and the demandant, having been appointed on November 27, 1912, seeks by this writ of entry to recover the undivided one third interest of the insolvent in the demanded premises. R. L. c. 179, §§ 1-7. Davis v. Newton, 6 Met. 537, 540, 541. Smythe v. Sprague, 149 Mass. 310, 312. The tenants, who respectively are seised in fee and in mortgage of two undivided thirds, claim title to the remaining third under mesne conveyances from the debtor made subsequently to his insolvency.

It is no defense, that notice of the demandant’s appointment was not given as required by R. L. c. 163, § 52. The jurisdiction of the court of insolvency cannot be questioned collaterally. Howes v. Burt, 130 Mass. 368.

If without deciding it is assumed, as the demandant contends, that the third ruling was wrong and that upon appointment he succeeded by operation of law to the title of the former assignee, the question for decision is, whether the fifth ruling that the action is barred by St. 1895, c. 432, § 1, was right. See Bemis v. Smith, 10 Met. 194; International Trust Co. v. Boardman, 149 Mass. 158; R. L. c. 163, §§ 74, 76, 80.

Before the enactment of this statute no corresponding provision appears in our laws, and a writ of entry could have been maintained at any time within a period of twenty years from the •death of the tenant for life. Pub. Sts. c. 173, § 3. R. L. c. 179, § 4. Pub. St. c. 196, § 1. R. L. c. 202, § 20. But the Legislature may reduce the period of limitation within which an existing •cause of action may be brought, if reasonable provision is made for opportunity to bring suit upon claims before they are barred, and the statute in question is applicable to rights previously vested, as well as to rights subsequently acquired. Mulvey v. Boston, 197 Mass. 178. St. 1895, c. 432, § 1, is in these words: “No •assignee of an insolvent estate shall commence or be made a party to any action, suit or other proceeding, either at law or in equity, touching any property or right to property, legal or equitable, unless the same is brought within six years from the time when the same might have been brought; but no such action, suit or other proceeding, unless barred by provisions of law other than this statute, shall be barred before the expiration of one year from the passage of this act.” The Pub. Sts. c. 157, which were in force during the lifetime of the first assignee, prescribe a period of six months in which the second and third meetings are to be held, the accounts of the assignee presented and allowed, a dividend declared and the question of the debtor’s discharge determined. If litigation is necessary to recover any portion of the estate the statute is intended to prevent prolonged delay, while not unreasonably restricting the time within which the assignee must assert by suit his rights “touching any property or right to property, legal or equitable,” passing to him under the assignment. The intention of the Legislature is to be ascertained from the language used, and no distinction is found between adverse claims to the debtor’s property, held by the assignee, arising after, and adverse claims existing before the assignment. R. L. c. 8, § 4, cl. 3. If resort to a legal contest becomes necessary, the assignee must enforce his rights within the period named. It is true the property was not scheduled, nor was it discovered until shortly before the action was brought. The omission, however, is not stated to have been fraudulent or intentional, and fraud cannot be presumed. Whiton v. Nichols, 3 Allen, 583. If fraudulent concealment appeared, the question whether the statute would begin to run until discovery of the fraud by the assignee would be presented. Farnam v. Brooks, 9 Pick. 212, 244. Nudd v. Hamblin, 8 Allen, 130. Kenyon v. Wrisley, 147 Mass. 476. It is not open on the record. By § 3 the act took effect upon its passage. It was approved on May 29,1895, and an action could have been brought at any time before September 22, 1900. R. L. c. 8, § 1. The proviso applies only to actions which otherwise would have been outlawed by force of the statute within the year from the date of enactment. Brigham v. Bigelow, 12 Met. 268. Sohn v. Waterson, 17 Wall. 596. By R. L. c. 227, the statute was repealed, but, as the limitation, which began to run on September 22, 1894, had then expired, the remedy had been barred before the demandant’s appointment. Allis v. Moore, 2 Allen, 306. R. L. c. 226, § 1. And the argument of counsel for the demandant concerning the provisions of R. L. c. 163, § 60, or of § 2 of- the bankruptcy act of 1867 and its construction in Dushane v. Beall, 161 U. S. 513, and Hammond v. Whittredge, 204 U. S. 538, need not be considered.

Exceptions overruled.