314 Mass. 113 | Mass. | 1943
These three cases come before us on the appeals of Dorothy G. Holcombe (hereinafter referred to as the appellant), who is the petitioner in two of the cases and the respondent in the third case, from the decision of a judge of the Land Court. Two of the petitions, those of the appellant and Hopkins, are cross petitions for the registration of title to the same parcel of land; the third petition is that of the appellant for foreclosure of an alleged tax lien on the same parcel of land, based on a taking thereof made by the town of Brewster for taxes assessed to Hopkins and others by an instrument dated October 30, 1936, and duly recorded, and by a conveyance from the town to her by deed dated September 17, 1938. In the first two cases the judge ruled on all the evidence that the appellant had not sustained the burden of proving title to the contested parcel and that Hopkins had sustained the burden of proving that he had title thereto, and ordered the entry of a decree accordingly. In the matter of the petition for foreclosure of the alleged tax lien, the judge found that the tax taking was void by reason of including land that “the parties assessed in the Holcombe chain did not own,” and ordered that the petition to foreclose the alleged tax lien be dismissed. It is appropriate to consider this decision with relation to the foreclosure of the tax lien first.
We perceive no error with respect to the decision of the judge relative to the alleged tax lien. No error of law is apparent on the face of the record. The finding of the
We now address ourselves to the respective petitions for registration of title to the locus in question.
The decisions appealed from by the appellant were made at the second trial of the cases, which resulted from the reversal by this court of a ruling by the judge at the first trial that the subject matter had already been adjudicated. This ruling was based upon an earlier proceeding for registration, brought by one Mitchell, which did not include the locus here involved and in which proceeding Hopkins had been a successful respondent. Hopkins v. Holcombe, 308 Mass. 54. The locus in question is described in that case. No useful purpose would be served by describing it again.
The examiners’ reports on the title, consisting of some two hundred fifty-five pages of abstracts from the public records, were introduced in evidence. The trial judge, however, in his decision stated that he excluded from consideration certain of these abstracts in each case, in the Holcombe case because the report of the examiner reads in part as though the examiner thought he was reporting as a master, although no reference was issued to him to hear the parties and their evidence and report his findings, and in the Hopkins case "in order to be meticulously fair to both principals.” These documents are not reproduced in the record and the contents of those that were not excluded from consideration by the judge in reaching the decision are not set forth in full in the record. An examination of the record
It is settled that appeals such as those now before us bring before this court only questions of law apparent on the record, that findings of fact cannot be revised and must be accepted as true, and that, if upon all the facts thus displayed and the reasonable inferences of which they are susceptible, the. ultimate finding is justified as matter of law, it must stand. Burke v. Commonwealth, 283 Mass. 63, 67, and cases cited. Franklin v. Metcalfe, 307 Mass. 386, 390. Bianco v. Lay, 313 Mass. 444, 447. And since the decision does not purport to set out all the material evidence, the question whether the evidence warrants the findings of the judge is not before us, and hence the only questions for decision are whether the specific facts found are as matter of law inconsistent with the general finding for Hopkins, and whether it was error to fail to rule as requested by the appellant. Bacon v. Kenneson, 290 Mass. 14, 15. In view of the governing principles just stated, we deem it unnecessary to state in detail the facts found by the judge in relation to the chain under which the respective parties claim title to the locus in question. The chain of title, as set forth by the judge in his decision, starting in 1702 covers a period of "239 years.” That such a long period was covered in the search of the title of the locus the judge ascribed to the over-zealousness of the examiners. It would add nothing to our jurisprudence to recite the devolution of the locus through that period. The parties themselves are the only ones interested in the history of the title to the locus, and they must be taken to be familiar with it even if not in agreement as to its present ownership. It will suffice to deal with the decision in so far as the appellant contends that errors of law are apparent on the record.
The appellant has argued that the judge erroneously instructed himself as to law by the statement made by him in the first paragraph of his decision as follows: "These three cases were tried together. It is a second trial of the two registration cases due to my error of law at the first trial in applying a res judicata rule in favor of Hopkins and
The appellant also complains of the action of the judge in excluding from consideration, apparently upon his own motion and after the trials had been concluded, parts of the examiners’ reports after having admitted them without, so far as appears, objection or exception. The reasons assigned by the judge for this action we have already stated. We have no means of determining whether this action was prejudicial to the rights of the appellant, since the evidence excluded is not contained in the record. If the appellant was aggrieved by this action of the judge taken in the absence of counsel, the proper way to have brought the excluded evidence before us was by bill of exceptions under Rule 6 of the Land Court (1935). G. L. (Ter. Ed.) c. 231, § 113. See Crawford v. Boloson, 262 Mass. 527, 528, 529.
The appellant also contends that it was error of law for the judge to fail to report certain evidence and her objec
The appellant also contends that the decision of the judge is based on specific findings of fact that are inaccurate, contradictory, and inconsistent with the general finding for Hopldns. These contentions, however, are based upon certain documentary evidence that is not contained in the record, and the record cannot be supplemented by evidence that is merely set forth in the brief of counsel. Holmes v. Barrett, 269 Mass. 497, 502. Bacon v. Kenneson, 290 Mass. 14, 15. Confining our consideration of the case to the record, we are unable to discover any specific facts found by the judge that can be said rightly to be inconsistent with his general finding for Hopkins.
The judge stated in his decision that, at the close of the
The appellant’s contention that the judge gave counsel no opportunity for oral argument and, after directing counsel to file written arguments on or before a certain date, refused to consider the written arguments, is not substantiated by the record, which discloses no such action on the part of the judge. There is no error of law in this respect apparent upon the record.
The entry in each case will be
Decision affirmed.