Wait v. Maxwell
22 Mass. 217
Mass.
1827
Check Treatment

The opinion of the Court was drawn up by

Parker C. J.

The decree of the Court of Probate, granting letters of guardianship, is void, because it does not appear that any notice was given to the subject of it before the inquisition taken;1 nor is there any judgment or decree ascertaining that she was non compos. Probably the proceedings of the Probate Court would have been rejected from the evidence, if a motion to that effect had been made at the trial. They were objected to only as proving conclusively the incapacity of Dorothy Kemp, and the objection was sustained by the Court; but the proceedings remained in the case and made part of the evidence committed to the jury. A new trial is not necessarily to be granted because evidence has been introduced into a cause, which, if liable to objection, ought upon motion to have been rejected, not even if such evidence is commented upon by the judge ; for it sometimes happens that evidence, which would be inadmissible if objected to, is admitted by consent; and if the judge is not called upon to decide on its competency, it ought to be considered as tacitly assented to. If this were not the rule, it would be •in the power of parties to put the adversary to expense and delay by trying the chance of a verdict in their favor, and if they fail, of obtaining a new trial; which would be injurious to the rights of the party gaining the verdict. Besides, if the evidence offered is objected to, it may be supplied by other evidence, or the party who offers it may abandon his cause in that stage of the proceedings without incurring additional expense. It should be understood therefore, that unless the Court is moved for the rejection of evidence, it must be considered that all objections are waived, and that no relief can be had after the verdict, on the ground of the in-

*220competency or informality of the evidence.1 And the same rule will be observed in relation to the charge of the judge respecting such evidence, if he is not specially asked to consider it as not belonging to the case, on account .'if inadvertency in the counsel in suffering it to pass without objection.2

We are satisfied, however, that the verdict has been returned upf n a wrong principle, and that it is within the discretion of the Court to grant a new trial, notwithstanding the point on which we decide was not distinctly raised at the trial. The deed of Dorothy Kemp was not void, but only voidable. It conveyed a seisin to the grantee, defeasible by her, her heirs or devisees, when entry should be made to avoid it.3 The issue therefore was maintained by the defendant, for the only point was whether Wilder was seised when he conveyed to the plaintiff. It is very clear that he was, according to the effect given to deeds of bargain and sale by our statute. Had Dorothy been actually under guardianship when she made the deed, it would have been otherwise, as the decree and letters of guardianship would have taken from her all capacity to convey ; but there was no such decree or letters, the whole proceedings on that subject being null and void; so that the presumption of law was in favor of her capacity, and her deed was valid, until by entry or action the grantee was ousted or the deed avoided.

We think, as the rule of damages would be different on the other covenants in the deed, there ought to be a new trial, with leave to the plaintiff to amend by adding a count or counts on the other covenants, and that if the defendant prevails, he should recover no costs for the term at which the former trial was had.

New trial granted.

Notes

See Revised Stat. c. 79, § 9.

See 2 Pick. (2d ed.) 165, n. 1.

See State v. Hascall, 6 N. Hamp. R. 359.

See Somes v. Brewer, 2 Pick. (2d ed.) 190, and n. 1.

The same is true of a deed voidable by an infant. Wheaton v. East, 5 Yerger, 41.