Richards v. Keyes

195 Mass. 184 | Mass. | 1907

Hammond, J.

If the first deed from Keyes the trustee to Mary L. Richards and the mortgage back were valid, then the plaintiff has no case. If they were invalid, or voidable at the election of the plaintiff, then it is clear that she is estopped in equity to set up such a claim, because, first, as appears from the paper of October 16, 1894, signed by her and her mother, she requested the delivery of such deed and mortgage and agreed to indemnify the trustee against all loss, trouble and expense on that account; and, second (which is the stronger reason), she with full knowledge of the circumstances joined in the request for the granting of the petition of Keyes subsequently filed in the Probate Court for the decree confirming said sale.

The plaintiff urges that this case is not within R. L. c. 148, § 24, which provides for confirmation of certain proceedings by the Probate Court, and that the statute refers only to those cases where there is an alleged irregularity or want of notice. This position, however, is untenable. The statute applies also where the “ want of authority ” “ is drawn in question ”; and it is apparent that such was this case.

*187It is further urged that the statute is unconstitutional. No authority is cited by the plaintiff in support of this proposition. The statute confines the exercise by the Probate Court of this confirmatory power to cases where’ the act or proceeding to be ratified or confirmed is such as might have been “ passed or authorized in the first instance upon due proceedings.” There can be no doubt that the act which was finally confirmed, namely, the sale by Keyes to Mary L. Richards, was such an act. That such a statute is constitutional is too clear for discussion.

The ruling, therefore, that “ the plaintiff, after joining in said petition for confirming the said sale and mortgage, after the decree of the Probate Court thereon and after the execution by her of said instrument [of October 16,1894], . . . could not now complain of the act of the trustee in making said sale, giving the deed, and taking back the mortgage ” was correct.

Exceptions overruled.