186 Mass. 59 | Mass. | 1904
This is a writ of entry brought under R. L. c. 146, § 17, by the administrator of the estate of Isabella S. Whicher, lately deceased, to obtain possession of certain land which is alleged to have been fraudulently conveyed to the tenant, and which the demandant declares he has been licensed to sell. The chief question is whether at the time the action was brought there was any operative license to sell.
The facts material to this question may be briefly stated. After prolonged litigation, (see 173 Mass. 517, 176 Mass. 547, 179 Mass. 390,) a claim in favor of a national bank was finally established against the estate. Whereupon the administrator represented that the estate was insolvent, commissioners were appointed before whom this claim was proved, the administrator
It therefore appears that, at the time this present writ issued, exceptions taken at the hearing before the single justice and also to his order affirming the decree of the Probate Court, although not yet formally allowed, were still pending; and the question is whether under this state of things there was any operative license at the time the writ issued.
While the appeal from the Probate Court did not bring to this court the whole case, and did not invalidate anything there done under the decree prior to the appeal if the decree was finally affirmed by this court, yet it brought here the whole question, including both law and fact, whether the decree was wrong for any of the reasons assigned by the appellants, and suspended its operation until the determination of the appeal by this court. Gale v. Nickerson, 144 Mass. 415. R. L. c. 162, § 16. It therefore becomes necessary to consider the effect of the proceedings in this court at the stage in which they were at the time this writ issued.
At common law a writ of error, so far as based upon an error at law, lay only when the error was apparent on the record. Inasmuch as rulings made during the trial did not so appear, St. 13 Edw. I. c. 31, was passed, which allowed a party to state
From time to time changes have been made in the details of this system, but in substance and effect it remains as outlined in the statute where it first appears. The plain purpose of this method was to have questions of law settled before final judgment, or, where the exception was to the judgment, before issue of the execution; and that radical feature has been constantly maintained except where the exceptions are frivolous, immaterial, or intended for delay. This feature appears in R. L. c. 173, § 79, in this form : “ The trial of questions of fact shall proceed although exceptions have been filed and allowed therein, and such further proceedings shall be had as the court orders; but judgment shall not be entered unless the exceptions are adjudged immaterial, frivolous or intended for delay.”
Under this system, exceptions may be allowed and entertained to decisions of justices of this court sitting in equity or for the hearing of appeals from the Probate Court. Dorr v. Tremont National Bank, 128 Mass. 349, and cases cited. In such cases the general radical feature of the system remains, and, where the exceptions are taken to the rulings made at the hearing, no final order or decree should be passed before the expiration of the time for filing the exceptions or until the determination of the questions of law thereby raised. Prescott v. Prescott, 175 Mass. 64. Green v. Crapo, 181 Mass. 55. Goff v. Britton, 182 Mass. 293. In the case before us no final decree affirming the decree of the Probate Court could properly have been made until after the expiration of the time for filing a bill of exceptions, or (if filed) until the determination of the questions of law therein raised. In legal effect the decree made by the single justice can be regarded only as an order for a final decree of affirmation of the decree of the Probate Court. But even if it were otherwise and the order would be construed as a final decree, still the exception taken to the decree would stay its operation until the exception taken to it was disposed of. Such a view is in accordance with one of the leading features of this system of raising questions of law, as established by the statute
It is urged, however, by the demandant, that even if the license was not operativé at the time the writ issued, inasmuch as the exceptions were held unsound and the decree granting a license was finally affirmed by the full court, the affirmation relates back to the time of the appeal, and validates intervening action. While it is true that an order or decree of the Probate Court is not vacated by an appeal but is simply suspended, and upon being affirmed by the Supreme Court takes effect and operates as a decree of the Probate Court and any intermediate action which has been had under the decree is valid, (Gale v. Nickerson, ubi supra,) still it is obvious that such intermediate action must be such as, at the time it is taken, is permitted by law, as action taken prior to the appeal. Where the statute declares a decree suspended, there can be no legal action under it. Arnold v. Sabin, 4 Cush. 46. The time of suspension must be a time of inaction, as well with reference to things not yet undertaken as those partially performed. No other interpretation would give due effect to the suspension or be consistent with the due and orderly administration of the law.
It follows that the demandant failed to show so far as material to this action the license necessary to its maintenance, and the tenant' was entitled to the ruling that the action was prematurely brought.
Exceptions sustained.