Moseley v. Moseley

Carroll, J. This is a petition in the Probate Court for Hampden County, dated March 21, 1921, wherein the petitioner prays that Robert C. Parker, a commissioner appointed to make partition of certain real estate by sale, be ordered to pay the petitioner the amount of an execution and the interest thereon out of the funds in his hands belonging to the respondent, George O. Moseley, The petition* alleges that on December 15, 1920, Parker was appointed commissioner to make partition of certain real estate among tenants in common “whose names are all the parties to this bill in equity;” that the estate was sold on January 12, 1921, for $5,450, and that this money was paid to Parker; that the sum of $2,725 represents the share of the respondent, George O. Moseley; that on December 6, 1920, in the Superior Court for Hampden County the petitioner recovered judgment against George-O. Moseley and execution was issued thereon January 14, 1921, in the sum of $1,050.10; that an attachment of real estate was-made in this action and was set forth in the petition for partition sale, under which Parker was appointed commissioner;: that on January 14, 1921, a deputy sheriff presented the execu — 3 — tian to Parker for payment out of the funds in his hands belonging to George O. Moseley, and payment was refused; that said ■execution has not been paid and George O. Moseley is indebted to the petitioner for the amount of said execution and interest thereon. The respondent Parker demurred to the petition. A decree was entered sustaining the demurrer and dismissing the petition. From this decree of the Probate Court the petitioner appealed. Under St. 1917, c. 279, § 30, now G. L. c. 241, § 28, “ a person having a mortgage, attachment or other lien on the share of a co-tenant shall be concluded by the decree, so far as it relates to the partition and the assignment of the shares; but his lien shall remain in full force upon the part assigned to or left for such co-tenant, or, in the event of a sale, upon the share of such part owner in the proceeds, and may be enforced in the manner provided in section 19.” By § 19 of this statute, if partition is made by sale, a remedy is .given by petition in equity in the Probate Court before payment is made, but in order that the petitioner may avail himself of this remedy he must at the time have a mortgage, attachment or other lien on the share of the cotenant. The final judgment in favor of the petitioner was entered December 6, 1920, execution 'did not issue until January 14, 1921, and the pending petition was not brought until March 21,1921. The lien secured by the attachment was lost after thirty days from December 6, 1920. G. L. c. 223, § 59. Tolman v. Tolman, 224 Mass. 501. Whittemore v. Swain, 198 Mass. 37. Therefore when the petition was brought, the petitioner had no lien on the respondent’s share and he could not recover under St. 1917, c. 279, by a petition in equity in the Probate Court. Nor can the petition be maintained under G. L. c. 214, § 3, cl. 7, seeking to reach and apply the share of the respondent, George O. Moseley, in the custody of the commissioner in satisfaction of the petitioner’s debt. The Probate Court had no jurisdiction under this statute. The jurisdiction is limited to the Supreme Judicial Court and the Superior Court. G. L. c. 214, § 3. See Stockbridge v. Mixer, 215 Mass. 415; Abbott v. Gaskins, 181 Mass. 501; Powers v. Raymond, 137 Mass. 483. Even where the court in which the proceeding is brought has jurisdiction under the •statute to reach and apply, it has been decided that a commis — 4 — sioner appointed by the court cannot be obstructed in the final distribution and disposition of the fund by a proceeding under this statute. Travelers Ins. Co. v. Maguire, 218 Mass. 360. The demurrer was sustained properly. Decree affirmed.