Edwards v. Columbia Amusement Co.

Sheldon, J. The fundamental question is whether the judgment rendered in the Municipal Court of the City of Boston in favor of the present defendant against these plaintiffs for possession of the premises described in the bill is a bar to the maintenance of the present suit. Since the filing of the amendment or supplemental bill in October, 1911, and of the amendment allowed on January 23, 1912, the plaintiffs have asked only that their lease, as to the premises described in the bill, be declared valid, and that the defendant be ordered to surrender to the plaintiffs possession of said premises. The judgment in the Municipal Court was rendered after the filing of the original bill in this case, but before the filing of the supplemental bill. It was rendered upon an action brought by the present defendant under R. L. c. 181, against these plaintiffs, to recover possession of the premises. Due service of process was had, the parties appeared, and the case was tried in the Municipal Court. At that trial, evidence was put in as to whether or not the several incumbrancers on the Grace property and the defendant had notice of these plaintiffs’ lease, and that issue was raised. The present plaintiffs did not appeal from that judgment, but surrendered possession. They now seek to be restored to that possession. The validity against the defendant of the plaintiffs’ lease depended on the question whether the defendant or its predecessors in title had notice of that lease. It ran for more than seven years, and was not recorded until after the title under which the defendant claimed had accrued. R. L. c. 127, § 4. That issue was raised at the time in the Municipal Court, and the judgment in favor of this defendant could not have been given unless that issue had been found in its favor. It could not otherwise have been found, under R. L. c. 181, § 3, that the defendant was entitled to possession. Moreover, as the plaintiffs had been in quiet possession for more than three years before the commence [128] ment of that action, the judgment could not have been entered unless it had been found that their estate had been ended; R. L. c. 181, § 10; but no claim was made that it had been ended, except upon the ground that it had not been seasonably recorded, and that neither the defendant nor its predecessors in title had had any notice thereof. Indeed there is nothing to indicate that any other issue was raised at the trial. The finding accordingly must have been made that there had been no such notice. That finding became res judicata between these parties. Black River Savings Bank v. Edwards, 10 Gray, 387. Jennison v. West Springfield, 13 Gray, 544, 545. Burlen v. Shannon, 99 Mass. 200, 203. Jamaica Pond Aqueduct v. Chandler, 121 Mass. 1, 2. Berman v. Henry N. Clark Co. 194 Mass. 248. Neither party can raise the question again in other litigation, unless this result is prevented by the language of R. L. c. 181, § 9: “The judgment in an action under the provisions of this chapter shall not be a bar to any action thereafter to be brought by either party to recover the land or tenements in question. ” But the present action is not brought to recover the premises described in the bill. The plaintiffs seek merely to be restored to the possession under the lease which they set up. They do not seek to settle the title, but only the right to the present possession, and that is the peculiar function of the summary remedy provided by R. L. c. 181. Page v. Dwight, 170 Mass. 29, 35, 40. Since the allowance of the amendment or supplemental bill under which the suit is now prosecuted, it is merely the summary process given by the statute, put into the shape of a bill in equity. Weiss v. Levy, 166 Mass. 290. Certainly it is not such a new action as is contemplated by the statute last cited, for the recovery of the property itself. The judgment of the Municipal Court, not having been appealed from but remaining in full force and effect, is a bar to the maintenance of this bill, as it would have been a bar to the bringing of another action by these plaintiffs under R. L. c. 181, merely to raise again the same issues which had been determined in the prior action. Neither such a supposed second action nor this bill raises any new issue or seeks to recover the premises themselves, or anything more than the bare possession. It is unnecessary to consider the other questions which have [129] been argued. Both the interlocutory decree appealed from and the final decree must be reversed, for the reason that on the facts appearing the bill cannot be maintained. So ordered.