163 Mass. 474 | Mass. | 1895
This case, having been heard upon the merits by a justice of the Superior Court, who has entered a final decree for the plaintiffs, comes before us upon two appeals taken by the defendant.
1. The first appeal was from an interlocutory order of the Superior Court overruling the defendant’s motion to dismiss the bill for the reason that the bill was filed on April 1, 1893, and no subpoena was taken out or served until more than three months after the filing of the bill. The defendant con
In our courts the power to dismiss an action in equity for want of prosecution is not regulated by statute. The 16th Equity Rule, which by force of statute is a rule of the Superior Court, provides that if the plaintiff, after the coming in of the answer, does not seasonably file a replication or exceptions to the answer, or set the cause down for hearing on the bill and answer, a decree may be entered for the dismissal of the bill with costs. Aside from the operation of this rule, questions whether a bill shall be dismissed for want of prosecution are to be determined by the general practice of courts of equity, and in the absence of specific directions embodied in statutes or general rules of court, the decision of such questions is usually within the sound discretion of the court by which they are to be determined. In the present case the only facts appearing are those stated, and the denial of the motion was right.
2. The other appeal is from the final decree in favor of the plaintiffs, by which they were declared entitled to redeem the
No contention was made in the Superior Court, or in the argument in this court, that the plaintiffs could not properly join in the bill. When the tax was assessed and the sale for non-payment of the tax was made, the plaintiff J. Frank Stone was the owner of the land, and on November 11, 1891, he conveyed it to the plaintiff Slattery, and at the same time took
Assuming that a mortgagee whose mortgage is in existence when a tax sale is made, and whose mortgage is extinguished thereafter, has no standing to redeem from the sale after the extinguishment of his mortgage, as may be inferred from the case of Keith v. Wheeler, 159 Mass. 161, that doctrine does not prevent either of the present plaintiffs from redeeming under the statute. Such a mortgagee, after the extinction of his mortgage, is no longer a person having such title that he might have recovered the land if no such sale had taken place. But each of the present plaintiffs is such a person, the plaintiff Stone by virtue of his mortgage of November 11, 1891, from Slattery, and Slattery by virtue of his deed of the same date.
We think it equitable that the costs of these appeals should be paid by the defendant.
The case is remitted to the Superior Court, the decree overruling the motion to dismiss being affirmed, and the final decree in favor of the plaintiffs affirmed, with costs of the appeal.
So ordered.