203 Mass. 493 | Mass. | 1909
The question at the trial was whether a building erected on land of the defendant in the first action, who will hereinafter be called the defendant, was personal property belonging to Searle, who will hereinafter be called the plaintiff, or was real estate owned by the defendant.
The jury might well find that there was either an express or implied agreement between Mrs. Strong, the owner of the land at the time of the erection of the building, and Smith, representing both himself and the plaintiff, that the building should be personal property belonging to Smith until it was fully paid for by the plaintiff, and should be held by Smith as collateral security for the price to be paid for the construction of it, and should belong to the plaintiff as soon as this price should be fully paid. Oral evidence of the conversation and circumstances tending to show this was not incompetent as varying the terms of the lease.
The evidence tended to show that Smith held the lease for the protection of his rights in this particular, that, as soon as the building was paid for, he delivered the lease to the plaintiff, who was in occupation of the building, and that the'plaintiff continued to hold under the same tenancy after the death of Mrs. Strong, while the land belonged to her son, Clinton E. Strong, the devisee under her will. The recognition of this lease was a recognition of the continuance of the same tenancy by the plaintiff under the terms of the original writing, which was given in the name of Smith, but in part for the plaintiff’s benefit. The original ownership of the building by Smith and
There was some contradiction in the testimony relative to the conversations between the plaintiff and Edwards and Hitchcock after their purchase of the land, but the weight of the evidence is in favor of the plaintiff’s contention that they continued his tenancy on the same terms as had existed before, and that they intended to preserve to him such rights in the property as he had, if any, when they took their title. The jury properly might find that, if he owned the building with a right to remove it when they bought the land, they continued his tenancy and left him without interruption of such rights as he had by virtue of
The difference in testimony between these owners and the plaintiff at the trial was not as to whether they undertook to terminate any rights which he had when they took their title,but whether he had any title to the building at that time, and if he had, whether they expressly recognized it. The evidence warranted a finding that the parties expressly or impliedly agreed that he might continue his tenancy on the terms previously existing, with the same right in the building that he had under their grantor, whatever that might be.
The defendant and his agents and representatives had notice of the plaintiff’s rights before taking the deed. It is not contended that the defendant has the rights of a purchaser in good faith without notice or information of the plaintiff’s claim. The fact that he relied upon a warranty in a deed of a former owner is immaterial to this case.
Most of the questions of evidence are sufficiently covered by what we have said and by the cases already cited. In general, the dealings and conversation of the parties with each other, in reference to the property in question, are material.
We do not see the pertinency of Exhibit Two
Exception was taken by the defendant to the ruling of the judge at the request of the plaintiff, that no person of the Roman Catholic faith should sit as a juror in these cases. Under
The real estate held by the defendant is in the town of Easthampton, and it was bought as a site for a church edifice. The excluded jurors were not taxpayers in that town, and it may be assumed that they were not members of the parish that was expected to use the church. The ruling applied to all jurors of the Roman Catholic faith, without reference to their residence, or to any close affiliation with the local church. Has every person of the Roman Catholic faith in the diocese of the bishop of Springfield a pecuniary interest, of which the court can take notice, in every church owned by the defendant in every part of the diocese? We are of opinion that he has not. It does not appear, and we have no reason to suppose, that every Roman Catholic living in a remote part of the diocese can be affected pecuniarily by a small loss or gain of the bishop as owner, in connection with the erection of a Roman Catholic church in Easthampton.
Under the St. 1898, c. 368, the defendant’s holding of property is “ for the religious and charitable purposes of the Roman Catholic Church.” In the R. L. c. 36, §§ 44-46, it is strongly implied that there is a difference in the trusts, and in the beneficiaries, among churches in different places, and that the members of a particular parish and those directly connected with the church therein have different pecuniary relations to the church
The remaining question is whether the error was prejudicial to the legal rights of the defendant. The manner of impaneling jurors is prescribed by the R. L. c. 176, § 25. The names of those summoned as jurors are written on ballots and placed in a box, and, after the ballots are shaken up, the clerk draws them one by one in succession until twelve are drawn. Apart from challenges, “ the twelve men so drawn . . . shall be the jury to try the issue,” etc. The order of the judge was a violation of the statutory provision, and of the defendant’s right to have the excluded men sit as jurors unless challenged by the plaintiff.
The case was tried by other qualified jurors, and it is argued that the defendant was not injured by the order. Under the R. L. c. 176, § 32, no irregularity in the drawing, summoning, returning or impaneling of jurors is sufficient to set aside the verdict, unless the objecting party was injured thereby. In general it may be assumed that all duly qualified jurors, against whom there cannot be a successful challenge for cause, will consider and try a case properly. But a man may have affiliations and friendships, or prejudices and habits of thought which would be likely tó lead him to look more favorably for the plaintiff, or less favorably for him, upon a case of a particular class, or upon one brought by a particular person or a member of a particular class of persons, than would the average juror, even though his peculiarities are not sufficiently pronounced to disqualify him for service. It is in reference to these peculiarities that the parties are given a limited number of peremptory challenges. While they have no direct right of selection, this right of peremptory challenge gives to each party a restricted opportunity for choice among qualified persons.
Our decision seems to be in accordance with the weight of authority, although some of the cases depend upon local statutes. Hildreth v. Troy, 101 N. Y. 234. Welch v. Tribune Publishing Co. 83 Mich. 661. Scranton v. Gore, 124 Penn. St. 595. Montague v. Commonwealth, 10 Gratt. 767. Kunneen v. State, 96. Ga. 406. Bell v. State, 115 Ala. 25. Danzey v. State, 126 Ala. 15.
We are aware that courts have often required pretty clear proof of injury before setting aside a verdict for a cause of this kind. West v. Forrest, 22 Mo. 344. Southern Pacific Co. v. Rauh, 49 Fed. Rep. 696. Pittsburg, Cincinnati, Chicago & St. Louis Railroad v. Montgomery, 152 Ind. 1, 23. People v. Searcey, 121 Cal. 1. Tatum v. Young, 1 Porter, (Ala.) 298. Abilene v. Hendricks, 36 Kans. 196, 200. It is also generally held that an appellate court will not review an exercise of discretion, or a mere finding of fact of a trial judge, determining whether a person shall sit upon a jury. Commonwealth v. Hayden, 4 Gray, 18. Grace v. Dempsey, 75 Wis. 313. People v. Searcey, 121 Cal. 1, 3. Commonwealth v. Moore, 143 Mass. 136, and cases cited. Whether an error of law like that in the present case, if it arose
Exceptions sustained.
This was a lease from Mrs. Strong to Smith of “ the land on the westerly side of Union Street in Easthampton upon which he has recently erected a building thirty feet wide and forty feet long.” It was dated October 16, 1897, and was for the term of five years from September 16, 1897. The rent was $12.50 a month.
Clinton E. Strong gave to Edwards and Hitchcock a warranty deed of the real estate dated December 17, 1906, describing it as “a certain tract or parcel of land with the buildings thereon, bounded” etc., giving the boundaries. Edwards and Hitchcock, through one MacBean as a conduit, conveyed the real estate to the defendant in the first case. Mrs. Strong died on September 5, 1899. After her death the plaintiff continued to pay rent at the rate of $12.50 a month to Clinton E. Strong and afterwards to Edwards and Hitchcock up to the time of the sale to the defendant. The lease was extended by Clinton E. Strong until May 1, 1904. After the extension expired, upon the plaintiff asking for a new lease, Strong told Mm that it would not make any difference whether the plaintiff had a lease or not, that “ he could keep right along just the same; pay the rent the same as he had ”; that the plaintiff spoke of his right to move the building and that Strong said, “ You keep along just as you have and it will be all right; ” that, about January 1,1907, after the sale to Edwards and Hitchcock, the plaintiff paid $12.50 to Hitchcock as land rent and then had a conversation with Edwards about moving his building in which Edward said “ If I can sell the property I will give you all the time you want to move off your building.”
This was an agreement to which neither Smith nor Searle was a party.
In R. L. c. 176, § 29, it is provided that “ In a civil case each party shall be entitled to two such challenges.”
