| Mass. | Nov 15, 1872
From the facts alleged in the bill and established at the hearing, it is manifest that in the writ of entry, 98 Mass. 500" court="Mass." date_filed="1868-01-15" href="https://app.midpage.ai/document/esty-v-currier-6415237?utm_source=webapp" opinion_id="6415237">98 Mass. 500, both parties were unaware that the line of fences, by which they and their respective grantors had occupied for twenty-six years, diverged from the line as described in the writ.. The agreed statement in that case is inconsistent with any other' supposition. It represents the building in controversy to be 51 on the line of separation between said lots; ” and that “ the boundary line between the lots was under said building.” The disclaimer was filed upon that supposition; whereas in fact the description in the writ was of a line forming one side of a triangle, of which the other two sides were the lines of fence, with the building at
There is nothing to indicate fault or negligence on the part of the plaintiff, in thus mistaking the boundaries of the demanded premises. On the contrary, the conduct of the demandant in that case, now defendant, without imputing to him any intention to deceive, was such as to confirm the plaintiff’s erroneous supposition, if it did not give rise to it, and to divert him from scrutiny which might otherwise have disclosed it.
It was such a mistake as would have afforded sufficient ground fbr a writ of review at law. Hutchinson v. Gurley, 8 Allen, 23. Bowditch Insurance Co. v. Winslow, 3 Gray, 415, and cases there cited.
The plaintiff, however, did not discover his mistake until too late to avail himself of his remedy by petition for a review. In this also he is not chargeable with loches. The bill alleges fraudulent concealment by the defendant. But we are inclined to take the allegations in this particular, with the statement of the report that “ all the facts alleged in the'bill were proved, except” as to the occupation prior to 1840, as establishing nothing more than that having discovered the mistake and intending to take advantage of it, he was silent, and purposely avoided any act which would disclose it to Currier, until the expiration of the time within which a review was open to him.
Active fraud on the part of the defendant is not essential to the relief sought. It is enough that the judgment was the result of a mistake of fact on the part of the plaintiff; that he is deprived of his right of review by the failure seasonably to discover the real character of that judgment, which, though known to the other party, had been purposely concealed from him; and that without fault or negligence on his own part he is dispossessed of' property without an opportunity to maintain his title thereto. To enforce, as an absolute estoppel, such a judgment would be contrary to equity and good conscience. There being no other remedy now open to him, he may have relief in chancery by injunction. 2 Story Eq. § 887. Adams Eq. 197. 2 Dan. Ch. Pract. (4th Am rcL) 1625. Kerr on Injunctions, 23. Marine Insurance Co. v.
Decree accordingly.