118 Mass. 595 | Mass. | 1875
Worcester.
Bill in equity, filed April 29, 1875, to remove a cloud upon the plaintiff’s title, and alleging the following facts:
On May 13, 1874, Green made a contract with the defendant to build a house on said land for the sum of $1450 ; and the defendant performed his contract and received therefor the sum agreed prior to July 29, 1874.
On December 15,1874, the defendant filed in the city clerk’s office a certificate claiming a lien on said land for work done under the contract of May 33, above referred to. Within sixty days after the filing of said certificate, the defendant inserted in a writ, returnable to the March term 1875 of the Superior Court, a petition to enforce said lien. This writ was entered at said March term; Green, the only defendant summoned, was defaulted, and the action was continued nisi; and on April 10, 1875, after the adjournment of the court for the term, a final decree was entered as of the last day of the March term. On April 14,1875, a warrant issued on said decree for the sale of said estate, and was placed in the hands of a deputy sheriff, who in obedience thereto advertised the land for sale on May 22, 1875.
The defendant demurred on the ground that the plaintiff had a plain, adequate and complete remedy at law. It was agreed that, if the demurrer was finally overruled, a decree should be entered for the plaintiff.
The demurrer was overruled, and a decree entered perpetually enjoining the defendant from proceeding to enforce the lien stated in the bill; and the defendant appealed.
were not called on. Endicott, J. This case comes before us on demurrer, and all the facts stated in the plaintiff’s bill must be taken to be true. The bill is brought to remove a cloud on the plaintiff’s title, and to perpetually enjoin the defendant from proceeding with the sale of the estate under the warrant, and from further molesting the plaintiff in his possession and occupation. There can be no question that the facts stated in the bill bring the case, within the rule, well settled in equity and law, that when a party wilfully misrepresents a fact to another, and on the strength of such false representation he is induced to alter his position, the former is precluded from setting up that the representation was not true. Raw v. Pote, 2 Vern. 239. Storrs v. Barker, 6 Johns. Ch. 166. Pickard v. Sears, 6 A. & E. 469, 474. Fall River National Bank v. Buffinton, 97 Mass. 498, and cases cited.
The only question raised by the demurrer is whether, upon these facts, the plaintiff has a plain, adequate and complete remedy at law. The defendant contends that the plaintiff has such remedy by a writ of certiorari, on the ground that there was error in entering the order for sale in the Superior Court, because the plaintiff was not made a party to the petition. Whether the proceeding in the Superior Court was not according to the course of the common law, within Gen. Sts. c. 145, § 8, relating to issuing writs of certiorari, and whether, under our statutes and practice, such writ may issue upon proceedings in the Superior Court, it is not necessary to consider. Assuming that a writ of certiorari may issue to correct an error in proceedings of this kind in the Superior Court, there was' no error in not making the plaintiff a party to the petition in the Superior Court. The petitioner was not obliged to summon in all persons who may have acquired an interest in the estate after his proceedings had been commenced, as provided in the St. of 1871, c. 78; and the validity of the process is not affected because it was not done.
The defendant also insists that the plaintiff has a remedy at law by petition under the Gen. Sts. c. 134, §§ 49, 50, summoning the defendant to show cause why he should not bring an action to try his alleged title. But when this bill was filed the defendant had no title in the land ; he had merely an order for sale, which he had caused to be advertised. And the plaintiff is not required to wait until somebody obtains a title under a sale before he can seek his remedy. Even when this remedy may be availed of under the statute, it is not necessarily so adequate and complete as to supersede the remedy in equity. Glouston v. Shearer, 99 Mass. 209.
This bill may therefore be maintained on the ground that the defendant procured this order of sale and attempted to enforce his
