Nazro v. Long

Knowlton, J. We may assume in favor of the demandant that if the tenant had no rights in the property the demandant’s title would be sufficiently proved by the facts stated. The judge rightly ruled that the deed under which the tenant claims is void, because under the Pub. Sts. c. 142, § 1, the Probate Court had no jurisdiction to make the decree on which it was founded without first' giving notice to persons interested. Such a notice is expressly required by the statute, and if it were not, the principles of natural justice would require it. Pratt v. Bates, 161 Mass. 315, 318. Shaw v. Paine, 12 Allen, 293. Smith v. Rice, 11 Mass. 507. Chase v. Sathaway, 14 Mass. 222, 227. Hathaway v. Clark, 5 Pick. 490. Peters v. Peters, 8 Cush. 529, 543. Jochumsen v. Suffolk Savings Bank, 3 Allen, 87. Pierce v. Prescott, 128 Mass. 140, 143, 144. The important question in the case is whether the facts show an equitable defence under the St.' 1883, c. 223, § 14. Everything relied on for this purpose is set out at length in the answer, and no question of pleading is argued. It appears that Abijah Long who owned the demanded premises made a contract in writing with his son Albert W. to convey to him the property for the sum of $200. He died not long afterwards without having made the conveyance, and Albert W. Long brought a petition in the Probate Court for an order that the administratrix of his estate carry out the contract. A decree in accordance with the prayer of the petition was made without notice to the persons interested, on the day on which the petition was filed. On February 19, 1887, the administratrix made a deed of the property to the tenant, who was the wife of Albert W. Long, which deed recited the original agreements and the decree of the Probate Court, and the tenant, who with her husband began to occupy the premises about the time of the death of Abijah Long, has been in possession ever since. The judge found that Albert W. Long paid the sum of $200 to the administratrix in accordance with the agreement, that he and the tenant intended to obtain a deed of the property, and that they thought they had a valid one, that they made repairs upon or additions to the house to a substantial amount and paid [456] the taxes, and that their occupancy during the whole time was known to the heirs of Abijah Long and was not objected to by anybody. Under these facts and findings the tenant has a title in the property which will be enforced by a court of equity. The evidence puts the tenant in the position of an equitable assignee of the original contract of sale. Such an assignment may be made orally. Currier v. Howard, 14 Gray, 511. Under the circumstances of this case the tenant’s rights are not defeated by the. fact that she was the wife and is now the widow of Albert W. Long. Moreover, the case comes within the provisions of the Pub. Sts. c. 142, § 22, which give a remedy in equity when an act or proceeding of a person acting as administrator under the appointment or license of a probate court is void by reason of an irregularity or want of jurisdiction or authority of the court. It is very similar to Nott v.- Sampson Manuf. Co. 142 Mass. 479, which sufficiently covers it as an authority. Judgment on the finding.