Barker v. Mackay

Morton, J. This is a writ of entry to recover certain premises held by the tenant by a tax title. There was evidence of a tender by the demandant of the amount due as required by the St. 1888, c. 390, § 57, within two years after the sale. There was a verdict for the demandant, and the case comes here on exceptions by the tenant to certain rulings by the presiding justice and to the admission of certain testimony. We shall consider only the exceptions on which the tenant relied at the argument before us, treating the others as waived. The tenant contends in the first place that the demandant’s remedy is by bill in equity in the Supreme Judicial Court under the provisions of St. 1888, c. 390, § 76. We do not see why this contention is not disposed of by Rand v. Robinson, 11 Cush. 289, in which it was held that the remedy afforded by St. 1849, c. 213, § 2, from which through successive re-enactments the St. 1888, c. 390, § 76, was derived was cumulative to that by a writ of entry, “and was intended to confer the additional remedy of a bill in equity ” in cases of redemption from tax sales. That statute was repealed, it is ;true, by St. 1856, c. 239, § 6, but the [488] provisions of § 2 were re-enacted in § 4 of the statute of 1856, with the proviso that “ relief be sought within five years from such sale.” Manifestly, the proviso would have no effect on the cumulative or exclusive character of the remedy by bill in equity. The provisions of St. 1856, c. 239, § 6, have been continued by successive re-enactments to the present time. We see no ground on which it can be contended that the remedy is solely by bill in equity. See Barker v. Mackay, 168 Mass. 76. The tenant further contends that the conversation between the demandant’s daughter and the tenant’s husband in July, 1895, was inadmissible. We think that it was rightly admitted. There was evidence tending to show that the property was bid off at the tax sale by her husband for the tenant with her knowledge and assent if not at her request; that he borrowed money for her to pay for the tax title which she paid back; that when the tender was made she consulted with him regarding it; that she paid a subsequent tax bill in his absence, and on his return consulted him about that also ; and that some time after the conversation between the demandant’s daughter and the husband, and while the tenant still held the tax title, the husband caused the house to be put in repair for occupancy. There was also evidence of other transactions between the tenant and her husband and others in regard to the property before the tax sale. The tenant denied that her husband was her agent, and the husband testified that his wife refused to have anything to do with the property till the title was settled, and that he expended his own money in putting it in repair and held the rent that he had received for whoever might turn out to • be the owner. But whether the husband was acting as agent for his wife at the time of the conversation objected to seems to us to have 'been under the circumstances thus disclosed a question for the jury. It was for the jury to give such weight to the testimony of the husband and wife as they deemed it fairly entitled to and to decide what the evidence fairly tended to show. We think that it cannot be held that there was no evidence justifying them in finding, as they must have found, that the husband was acting as his wife’s agent. See Arnold v. Spurr, 130 Mass. 347. The evidence which was admitted in support of that portion of the demandant’s opening to which the tenant objected was [489] subsequently ruled out as immaterial, and the demandant was not allowed to go to the jury on the issues raised by it. It is to be presumed that the jury disregarded it. The tenant does not appear to have been harmed by the course that was pursued. See Clark v. Boston & Maine Railroad, 164 Mass. 434. Exceptions overruled.