Low v. Low, 177 Mass. 306

Low v. Low

177 Mass. 306 | Mass. | 1901

Knowlton, J.

This case is founded in part on facts which appear in Low v. Low, 173 Mass. 580. The defendants contended that the bill could not be maintained as a supplemental bill, because it was not filed by leave of the court, and for other reasons. The judge in the final decree ordered that if leave to file the bill was necessary, such leave be granted. The report of facts which he filed under St. 1893, c. 61, to complete the record in aid of the appeal, shows a ruling “ that the bill stood well as an original bill; that the relief it asks is not inconsistent with the decree in the former bill; that the decree in the former suit that a conveyance should be made subject to certain mortgages was not a determination that those mortgages were a valid claim as against the plaintiff: that in the original bill the mortgagees not being made parties, no decree could be entered affecting their rights, and it could not be determined whether their mortgages were a valid lien upon this land described in the bill; that not being directly interested in the matter, it was proper for the plaintiff to leave them out; that the questions raised by the two bills are successive in their nature and no harm was done to either party by maintaining them successively ; that the decree in the suit to which they were not parties *310is not an adjudication which is final in this suit or an estoppel against the plaintiff.” We are of opinion that there was no error in this ruling. While the mortgagees well might have been joined in the original suit, it was not necessary to join them, and neither they nor the original defendants are injuriously affected by the secondary proceedings to obtain relief against them. It is clear that the plaintiff is not estopped by the former decree to proceed against them, for they were not parties to the suit, and the rights of the parties in reference to the mortgages could not be adjudicated in that proceeding. Moreover, the decree did not assume to determine the effect of the mortgages.

It was proper to join the mortgagors in this suit, because their rights would be affected in reference to the mortgaged property by the decision as to the effect of the mortgages upon the plaintiff’s rights.

So far as the suit refers to the proceeds of the claim for damages for the laying out of the highway through the property, it was properly brought. The decree in the former suit was not a bar to this proceeding in reference to the money, for the plaintiff’s right to apply to the court for further relief was expressly saved to him in it. The relief sought in this case against the former defendants is not inconsistent with the relief granted in the former ease, but naturally and properly it grows out of it. The defendants could not comply with that part of the decree which directed them to convey the whole tract of land described in the bill, because a part of it had been taken for a highway, and the defendants have received a sum of money as damages for the taking. It is, therefore, equitable that they should give the plaintiff the money which they have received as the proceeds of the land instead of the land itself.

There was evidence from which the judge might find that the mortgagees were affected with notice of the state of the title. The attorney who acted for them in the transactions when the mortgages were made, and who was relied on by them to secure a proper title, knew that the plaintiff was likely to seek relief in equity for the failure of Benjamin Low to deliver him the deed, and the judge well might find that he expected that a suit would be brought which would give the plaintiff a title paramount to *311that which the mortgagees would obtain. Allen v. South Boston Railroad, 150 Mass. 200, 206. Indian Head National Bank v. Clark, 166 Mass. 27, 30.

The defendant Mary J. Low contends that if this bill is to be maintained for the purpose of correcting errors in the final decree in the original suit there should be an order vacating the decree in that part which runs against her and directs a conveyance, since, as she says, she had no title except her right of dower as the widow of Benjamin Low. But the bill is not brought for a general correction of errors in the former decree. There is nothing in any of the answers in the former suit or in this suit which raises a question of this kind. The only relief sought in this suit against the defendants in the former suit is a decree that the money, which the case finds has been paid to the former defendants as the proceeds of a part of the land that they were ordered to convey, shall be paid over to the plaintiff. Mary J. Low is not only the widow of Benjamin Low, but she is the administratrix of his estate. In what capacity she and her two sons received the money does not distinctly appear. Whether at the time of payment she had a right of dower in the land is not shown. For all that appears her entire dower in her husband’s estate may have been set out to her in other lands. She may have made other arrangements with the heirs at law which leave her with no right of dower in this property. There is nothing in the case which calls for a modification of that part of the decree which directs the persons who received the land damages to pay to the plaintiff the money which they received, less the allowance which was made them by the judge for expenses.

Decree affirmed.