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made by him. On that day he conveyed the land to one Sanders. The covenants in the deed are as follows: "And I do hereby, for myself and my heirs, executors and administrators, covenant with the grantee, and his heirs and assigns, that I am lawfully seised in fee-simple of the granted premises; that they are free from all incumbrances except two mortgages,-one held by Jason A. Rice, of Shelburne Falls, Mass., for twelve hundred dollars, and one held by Luther Keyes, of Greenfield, Mass., for five hundred dollars, which mortgages said Sanders assumes and agrees to pay; that I have good right to sell and convey the same as aforesaid; and that I will, and my heirs, executors, and administrators shall, warrant and defend the same to the grantee, and his heirs and assigns, forever, against the lawful claims and demands of all persons." On April 4, 1889, said Sanders conveyed the premises to the plaintiff by a deed in which he covenanted "that I am lawfully seised in fee of the aforesaid premises; that they are free of all incumbrances, except two mortgages,-one held by Jason A. Rice, of Shelburne Falls, Mass., and one held by one Keyes, for $500, which mortgages said Lively assumes and agrees to pay. Afterwards Jason A. Rice, the holder of the first mortgage, demanded payment of his mortgage, and notified the plaintiff that if it was not paid he should foreclose the mortgage. The plaintiff neglected to pay the mortgage, and it was duly foreclosed by a sale. He claims that this foreclosure was an eviction, and that he is entitled to recover the value of the land of the defendant under his covenant of warranty in the deed to Sanders.

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It was the duty of the plaintiff to pay the Rice mortgage. He now seeks to found upon his own violation of duty a claim against the defendant. The rules of law do not lead to any such unjust and absurd result. Taking the whole deed together, it is clear that it is not the intention or the scope of the covenant of warranty to embrace the two mortgages and warrant against them. In construing a deed, as in construing other contracts, the primary object and duty of the court are to ascertain what is the intention of the parties, and to carry it into effect, unless there are fixed rules of law which make it impossible. If the intention can be clearly discerned, and it is lawful, the court will carry it into effect. It is too clear to admit of any doubt that it was the intention of the parties that the covenant of warranty in the deed to Sanders should not apply to the mortgages. The provision that the grantee is to assume and pay the mortgages is consistent only with this intention, and shows clearly that the parties understood that Sanders was buying the equity of redemption, and not the land free from the mortgages. The deed is carelessly drawn, but the intention is, beyond reasonable doubt, to convey the land subject to the two mortgages. To effectuate this plain intention of the parties, the covenant of warranty must be taken in a limited sense, and, as the parties plainly

meant, must apply only to the equity of redemption. Allen v. Holton, 20 Pick. 458; Sweet v. Brown, 12 Metc. 175; Howard v. Chase, 104 Mass. 249. The case at bar differs from the case of Estabrook v. Smith, 6 Gray, 572, in the fact that in the deed in that case there was no provision that the grantee should assume and pay the mortgage, and the court did not find evidence of a clear intention that the grantee should take the premises subject to the mortgage. This difference is vital, as the existence of such a provision in the case at bar shows clearly that it was the intention of the parties that the grantee should pay the mortgages, and that the grantor was not to be called upon to warrant or indemnify the grantee against them. Judgment for defendant affirmed.

(150 Mass. 185)

GARVEY V. GARVEY. (Supreme Judicial Court of Massachusetts. Hampden. Nov. 27, 1889.)

WILLS-TRUSTS.

Plaintiff's father left a will bequeathing his property to the defendant in trust, and provided that out of such property $400 should be paid to plaintiff by the trustee "at such time or times, and in such sum or sums, as by sickness or other misfortune he may need the same: provided, moreover, that any and all such payments trustee." At the time of his father's death, plainshall be left entirely to the good judgment of said tiff's family consisted of his wife, three sons, and three daughters. Subsequently, two sons and one daughter died, after long sickness. Plaintiff paid of his children, and became indebted for the balin part the expenses of the sickness and funerals ance, amounting to $200. He owned a homestead worth $1,200, and earned $1.50 a day, while his son earned a like amount. His wife was sick, and had been for some months. Held, that these were misfortunes which, under the terms of the will, entitled him to such a portion of the bequest as would defray the expenses of the sickness and funerals of his children.

Case reserved from superior court, Hampden county; LINCOLN F. BRIGHAM, Judge.

This was a bill in equity brought by Peter Garvey against William P. Garvey to compel the payment to plaintiff of his share of his father's estate, due him under a will of which defendant was executor.

E. H. Lathrop, for plaintiff. C. L. Long, for defendant.

MORTON, C. J. Andrew Garvey, by his will, bequeathed certain sums of money to his son, the defendant, upon the trust to pay "four hundred dollars to my son Peter Garvey, of said Springfield, to be paid to him by the said trustee at such time or times, and in such sum or sums, as by sickness or other misfortune he may need the same: provided, moreover, that any and all such payments shall be left entirely to the good judgment of the said trustee." The will makes a similar provision for the testator's son John Garvey, and further provides that "any balance of said funds not expended at the decease of my said sons Peter and John shall be and become the property of said William P. Garvey and his heirs." It appeared at the hearing in the

of his children, entailing upon him unusual expenses, which can be met only by a mortgage or sale of his little homestead. This presents a case of need of assistance which a fair-minded trustee would consider as calling for aid, according to the intention of the testator. The defendant acted under a mistaken view of his rights and duties when he refused assistance on the ground that no money was left to be spent on the plaintiff's family, and that "plaintiff was not sick, and did not need money for his misfortunes." And when we consider that in doing this he acted under "a hostile disposition towards plaintiff, and the influence of a pecuniary interest to withhold from plaintiff any benefit or assistance from said trust," and thus appropriate the whole trust fund to his own use, we think

superior court that the plaintiff's family, at | other misfortune," within the fair meaning the death of his father, in June, 1882, con- of the will. He was called upon to endure sisted of his wife, three sons, and three daugh- misfortunes, in the long sickness and death ters; that his eldest son, 27 years old, died in August, 1885; one of his daughters, 15 years old, died in November, 1888; and a son, 23 years old, died in March, 1889,-all of the disease of consumption, after long and lingering sickness. His family now consists of his wife, dying of consumption developed in November last, a daughter 20 years old, a son near manhood, and a granddaughter, 8 years old. He paid in part the expenses of the last sickness and funeral of his son and of his daughter, and is now under liabilities on account thereof to the amount of $200. His property consists of the house in which he lives, worth from twelve to fourteen hundred dollars. He earns one dollar and a half a day, and his minor son earns the same amount. The plaintiff has not himself been sick since his father's death. The superior a case is made out in which the plaintiff has court further found the following facts: "Upon the death of his daughter, in November last, and again upon the death of his son, in March last, plaintiff asked of defendant money to enable him to pay the expenses of the last sickness and funeral of said daughter and of said son; but the defendant refused to pay to plaintiff any moneys, saying that his father did not leave any money to him in trust for spending it on plaintiff's family, and that, as plaintiff was not sick, and did not need money for his misfortunes, he had nothing for him. Defendant and plaintiff, although both live in Springfield, have no social intercourse with each other, and are not friendly towards each other; and, in refusing the claims of plaintiff for money under the trust for his benefit in his father's will, defendant has manifested a hostile disposition towards plaintiff, and the influence of a pecuniary interest to withhold from plaintiff any benefit or assistance from said trust."

been unjustly dealt with, and the intention of the will defeated. The trustee has not fairly performed his duty, and the plaintiff has the right to invoke the aid of a court of equity to protect and enforce his rights. As the trustee holds other funds upon similar trusts, and the amount held in trust is small, we think the interests and rights of the parties can be protected without removing the trustee, by a decree that he shall pay the plaintiff the amount of the liability he is under for the unusual expenses caused him by the sickness and death of his children; leaving the balance in the hands of the trustee, to be paid, if in the future the plaintiff, by reason of sickness or other misfortunes, is in need, according to the reasonable and impartial judgment of the trustee, as contemplated in the will. Decree accordingly.

(150 Mass. 178) BASSETT v. CONNECTICUT RIVER R. Co. (Supreme Judicial Court of Massachusetts. Hampden. Nov. 27, 1889.)

CARRIERS OF GOODS-RES ADJUDICATA. Plaintiff shipped goods over defendant's railway, which, upon arriving at their destination, were stored in defendant's wareroom. The warehouse caught fire from a spark from a locomotive, and the goods were destroyed. Plaintiff brought action to recover therefor, alleging, among other things, negligence on the part of defendant in storing the goods in an unsafe place. On the trial, he made no proof of negligence, but based his right of recovery on Pub. St. Mass. c. 112, § 214, which provides that every railway company shall be liajudg-ble for property injured by fire caused by its locomotives. Held, that a judgment in such action is a bar to a subsequent proceeding, in which the right of recovery is based upon the negligence of the company in storing the goods.

It was not the intention of the testator merely to confer upon the trustee a bare power to furnish aid to the plaintiff, if he saw fit. It contemplates that the plaintiff might, by sickness or other misfortune, be in need of his father's bounty, and its purpose and legal effect are to give him the right to such bounty, if he is thus in need. It gives to the trustee a large discretion to judge of such need, but it is not an arbitrary and unlimited discretion. He is to act upon his "good judgment," and not upon his mere will or caprice, or from selfish or corrupt motives. He ought to exercise the good judgment which a reasonable man, having no hostility to the plaintiff, or selfish interest of his own, would exercise under the same circumstances. Wilson v. Wilson, 145 Mass. 490, 14 N. E. Rep. 521. It seems to us that the facts of this case show that an exigency in the plaintiff's life has arisen in which his father intended that he should have assistance from the bequest in his favor in the will. He needed such assistance by reason of "sickness or

Exceptions from superior court, Hampden county; THOMPSON, Judge.

This action was brought by Henry L. Bassett against the Connecticut River Railroad Company to recover for certain goods which had been stored in defendant's warehouse, and, while so stored, had been destroyed by fire. The declaration is as follows: "First Count. The plaintiff says the defendant is a

on the contrary, the defendant stored the same in an unsafe place, and in a building wholly unfit for such storage, and because of the failure of the defendant to use reasonable care in reference to the storage of said goods, and in providing a suitable store-house, and by reason of the defendant's negligence therein, the said goods and chattels were wholly destroyed by fire, to the great damage of the plaintiff." The defendant denied each and every allegation of the declaration, and alleged negligence on the part of the plaintiff. The case was submitted on an agreed statement of facts, showing substantially the above facts, and judgment was rendered for the defendant. Upon this showing the superior court ruled that the judgment in the former action was a bar to this action, and the plaintiff excepted.

Luther White, for plaintiff. Wells & Barnes, for defendant.

common carrier, and transported over its road certain goods and chattels belonging to the plaintiff, and agreed to store the same in a reasonably safe warehouse, and take reasonable care of the same; and the plaintiff says the defendant did not store the same in a store-house which was reasonably safe, and did not take reasonable care to guard and protect the same; and by reason of such failure of the defendant to keep its said agreements the plaintiff's goods and chattels were lost and destroyed by fire. Second Count. And the plaintiff says the defendant is a common carrier, and transported certain goods and chattels belonging to the plaintiff to Chicopee, and negligently deposited the same in an unsafe warehouse, and neglected to give the same proper care and attention; and by reason of such negligence on the part of the defendant the said goods and chattels, were lost and destroyed by fire." Both of the foregoing counts are for the same cause of action. The defendant, in its answer, set MORTON, C.J. The principles which govup a prior judgment obtained in an action for ern this case are well stated in Foye v. Patch, the same relief sought in this action, and on 132 Mass. 105, 110. A former judgment, if the hearing the following facts were submit- rendered upon the merits, constitutes an abted to the court, under agreement: The solute bar to a subsequent action, for the plaintiff shipped certain goods from Provi- same cause of action, between the same pardence, R. I., over defendant's road, to Chic- ties. The parties are concluded by the judgopee, Mass. The goods arrived at Chicopee ment, not only upon all the issues which were March 26, 1887, and were stored by the de- actually tried, but upon all issues which fendant in its warehouse, in its freight de- might have been tried, in the former action; pot at Chicopee. They remained there until so that a new action, for the same cause of March 30th, when the depot. caught fire from action, between the same parties cannot be a spark from one of defendant's locomotives maintained on grounds which might have and was burned, with its contents. It ap- been tried and determined in the former acpeared that the only notice plaintiff had of tion. In the case at bar the parties and the the arrival of the goods was from a teamster cause of action are the same as in the suit of not employed by the defendant, who solicited Bassett v. Railroad Co., reported in 145 Mass. the work of removing them when plaintiff 129, 13 N. E. Rep. 370. In each suit the was ready to have them moved. The plaintiff cause of action is the loss by fire of the plainbrought an action to recover the value of the tiff's goods while in the warehouse of the degoods destroyed, basing his claim on Pub. St. fendant. The second count of the declaraMass. c. 112, § 214, relating to the liability tion in the former suit is in legal effect the of railroad corporations for injuries to prop- same as each of the counts in the present suit. erty from fire caused by sparks from its lo- It charges the defendant with negligence in comotives. The declaration in this former keeping the goods in its warehouse. The action was as follows: (1) The plaintiff fact that the plaintiff, either by his laches or says the defendant is a corporation operating misfortune, failed to prove any negligence, a railroad within this common wealth, and on and chose to rest his case solely upon the liathe 30th day of March last, at Chicopee, in bility of the defendant under Pub. St. c. 112, said county, certain goods and chattels be- § 214, is immaterial. The question of neglilonging to the plaintiff were destroyed by gence was one of the issues involved in the fire, communicated thereto by the defend- case. He then had his day in court to prove ant's locomotive engines, to the great dam- this issue. It might and ought to have been age of the plaintiff. (2) And the plaintiff tried in that case. If his proof had shown further says the defendant received for stor- negligence, he would have been entitled to age certain goods and chattels belonging to judgment on that ground. Having failed the plaintiff, and the defendant agreed to use to show negligence, a judgment against him reasonable care in providing a store-house in is a bar to any future action for the same which to keep the same, and in storing, keep-cause of action. Interest reipublicæ ut finis ing, and protecting them. And the plaintiff sit litium. The superior court correctly says the defendant did not use reasonable care ruled that the former judgment is a bar to in storing, keeping, and protecting such goods this suit. Bigelow v. Winsor, 1 Gray, 299; and chattels, and did not provide a suitable Spaulding v. Arlington, 126 Mass. 492. Judgwarehouse in which to store the same; but, ment for defendant.

(150 Mass. 239)

SLATER V. LAMB et al. (Supreme Judicial Court of Massachusetts. Worcester. Nov. 29, 1889.)

run before the alias was taken out. It was

then too late to begin a new levy under the original execution by giving a second notice. Pub. St. c. 171, § 22; Prescott v. Wright, 6 Mass. 20, 22. The only thing to be done was to get an alias. In Croacher v. Oesting, ubi supra, and in Bell v. Walsh, 130 Mass. 163, the notices under which the respective sales took place were both given within 60 days from the date of the writ.

ALIAS EXECUTION-SALE. Upon a sale of land under an execution, the purchaser failed to fulfill the terms of the sale, and thereupon the officer, without making any return thereon, handed the execution back to the creditor's attorney. He elected to treat the sale as a nullity, and in good faith made an indorsement on the execution that it had never been in the hands of an officer, and asked for an alias execution, which was issued, and sale duly made thereunder. Held, that the failure to make a re-cution was procured, no doubt it would have turn on the first execution did not invalidate the sale under the alias execution.

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As to the manner in which the alias exe

been more regular, because more strictly according to the truth, for the officer to have returned the original execution unsatisfied. But the effect was the same whether the alias execution was issued on that ground or on the ground that the original never had been in the officer's hands. Either way the creditor only got what he was entitled to. If it be suggested that the $100 received by the officer on the first sale ought to have been applied in satisfaction of the execution, and the alias taken out for the residue only, the answer is that, whether or not it would have been in the power of the parties to adopt that course, they elected to avoid the sale ab initio; and upon their avoidance, properly so called, of the contract under which the purchaser paid and the officer received the money, the purchaser became entitled to have the money back. Coolidge v. Brigham, 1 Metc. 547, 550; Ballou v. Billings, 136 Mass. 307. It is found that the officer holds the money subject to the order of whoever has the right to claim it. The suggestion that, if the officer had made a return, the case would have been within Pub. St. c. 172, § 53, misapprehends the purpose of that section, which is directed to cases where executions have been fully levied, and then have been found to be inoperative, either wholly or in part. See Perry v. Perry, 2 Gray, 326. Judgment for demandant.

(150 Mass. 237)

HOLMES, J. This is a real action. The demandant purchased the premises at an execution sale, and the only question raised by the report is whether the execution was valid. A valid execution was issued on February 18, 1887, and was put into the hands of Shumway, a deputy-sheriff. He advertised and sold the land at auction in due form, and received $100 down from the purchaser. The purchaser, however, was unable and refused to pay the rest of the price, or to take the deed. Afterwards, by arrangement between Shumway and the creditor, the levy was abandoned, the proceedings on the execution were treated as a nullity, and the execution was handed back to the creditor's attorney, with no return upon it. The 60 days from the date of the execution having elapsed, the attorney in good faith indorsed upon it a certificate that it had never been in the hands of an officer, and was unsatisfied; whereupon an alias execution was issued un- NORCROSS et al. v. INHABITANTS OF MILder which the sale to the demandant took place. It is agreed that, if this execution (Supreme Judicial Court of Massachusetts. was lawful, the proceedings of the officer under it were sufficient to maintain the plaintiff's case. There is no doubt that the officer and creditor had a right to abandon the first sale. Croacher v. Oesting, 143 Mass. 195, 9 N. E. Rep. 532. We see no reason for denying the validity of the alias execution. It is to be presumed that the first levy was begun by notice of the first sale, that being the mode provided by statute in case of a sale. Hardy v. Safford, 132 Mass. 332, 334; Pub. St. c. 172, § 45. But this notice would not apply to a subsequent sale, because the auction at which the first sale took place was adjourned sine die, and the notice required by Pub. St. c. 172, § 45, is notice of the sale by which the levy is made. By this section the levy is to be "considered as made at the time of the first notice of such sale." The 60 days from the date of the original execution had

FORD.

Worcester. Nov. 29, 1889.)

TAXATION-ERRONEOUS ASSESSMENT. When property is improperly assessed for taxation, the owner's sole remedy is by an application to the assessors for an abatement of the unjust assessment, as provided in Pub. St. Mass. c. 11, § 69, and he cannot maintain an action at law to recover taxes paid upon such improper assessment. Richardson v. Boston, 20 N. E. Rep. 166, followed.

Exceptions from superior court, Worcester county.

This is an action brought by James A. Norcross and others against the town of Milford, to recover a portion of the taxes paid by them upon personal property. The plaintiffs are partners under the firm name of Norcross Bros., and are engaged in the business of contracting for the erection of buildings. They worked quarries at Milford, where they obtained the stone used in their buildings.

Nearly all the stone so quarried was shipped
to their main office, at Worcester, to be cut,
and a portion of it to the different places
where they were erecting buildings. They
kept no stone-yard at Milford for the sale of
cut stone, and their places of business for
stone cutting and dealing in stone were at
Worcester and Boston. There was
There was some
stone cut for their buildings and some un-
shipped stone in their yards and sheds at Mil-
ford on the 1st day of May, both in 1886 and
1887. On this property they were assessed
and taxed in both years. These taxes they
paid under protest, after demand and pro-
ceedings to collect the same had been begun.
This action was brought to recover the money
so paid, and they recovered judgment for
$475.20. Defendant excepts.

W. S. B. Hopkins, for plaintiff. H. E.
Fales, for defendant.

C. ALLEN, J. The plaintiffs do not contend that the assessment for their machinery and boilers and engines, in 1886, and for the same, and also for their horses and oxen, in 1887, was improper; but they contend merely that they were improperly assessed in 1886 for their stone quarried and dressed, and in 1887 for their stock in trade; and the superior court, agreeing with these views, gave judgment for the plaintiffs for the sums paid by the plaintiffs for the latter taxes, the attention of the court not being called, as we were informed at the argument, to the objection now urged by the defendant, that, assuming the facts to be so, the plaintiffs' sole remedy was by an application for an abatement, under Pub. St. c. 11, § 69. This objection must prevail. The rule of law has been settled for many years, and is not modified by the fact that the plaintiffs were non-residents of the town, or that the items of personal property were distinguishable from each other. Being properly taxable in each year for certain personal property, they cannot try the question, in an action at law, whether other personal property was lawfully assessed to them or not. Richardson v. Boston, 148 Mass. 508, 512, 513, 20 N. E. Rep. 166, and cases cited. Judgment for plaintiffs reversed.

(150 Mass. 188)

COMMONWEALTH v. STRATTON. (Supreme Judicial Court of Massachusetts. Worcester. Nov. 27, 1889.)

INTOXICATING LIQUORS-LICENSES.

Pub. St. Mass. c. 100, §§ 9, 10, relating to licenses for the sale of intoxicating liquors to be drunk on the premises, provide that all licenses of the first class shall be subject to the conditions that the licensee shall not keep a public bar, and shall hold a license as an innkeeper or common victualer, and shall specify the room or rooms in which said liquors shall be sold or kept by a common victualer, and that no person licensed as aforesaid, and not licensed as an innkeeper, shall keep, sell, or deliver liquors in any room not so specified. Held, that such license, when issued to one holding a license as an innkeeper, need not specify the room or rooms where the liquors were kept or sold.

Exceptions from superior court, Worcester county.

Prosecution of John Stratton for the unlawful sale of intoxicating liquors. Exceptions. by defendant.

A. J. Waterman, Atty. Gen., and H. A. Wyman, Asst. Atty. Gen., for the Commonwealth. T. G. Kent, and Geo. T. Dewey, for defendant.

MORTON, C. J. The defendant had a licenseas an innholder, and also a license of the first class, under Pub. St. c. 100, § 10, to sell liquor to be drunk on the premises. The superior court ruled that the last-named license was. invalid, because it did not specify the room or rooms in which such liquor should be sold or kept. This ruling was erroneous. The statute provides that each license of the first class shall be subject to the condition "that the licensee shall not keep a public bar, and shall hold a license as an innholder or common victualer, and shall specify the room or rooms in which such liquors shall be sold or No person kept by a common victualer. licensed as aforesaid, and not licensed as an innholder, shall keep, sell, or deliver any such liquors in any room or part of the building not specified in his license as aforesaid." Pub. St. c. 100, § 9. It is clear that this does not require that a license issued to one who holds a license as an innholder should specify the room or rooms in which the liquor shall be sold or kept. The provision as to specifying the rooms applies only to a license to sell liquors issued to a common victualer, and not to such a license issued to an innholder. If there could be any doubt as to the construction of the provision of the public statute which we have quoted, it would be removed by a reference to St. 1880, c. 239, § 1, of which such provision was intended to be a re-enactlicense shall specify the room or rooms in ment. That section, after providing that the which liquors shall be sold, and that no licensee shall sell in any other part of the building, contains the express proviso "that this section shall not apply to persons holding an innholder's license." The Public Statutes were not intended to, and do not, alter this provision of the statute of 1880. Exceptions sustained.

(150 Mass. 241)

STEAD v. CITY OF WORCESTER. (Supreme Judicial Court of Massachusetts. Worcester. Nov. 29, 1889.)

OPINION EVIDENCE.

In an action against a city to recover damages for its alleged negligence in allowing one of its common sewers to become choked up and obstructed in such manner as to prevent the sewage from flowing freely, whereby the sewage was forced back and up through a private drain of the plaintiff into his cellar, it appeared that plaintiff, in constructing the drain connecting with the sewer, left the cellar end of the drain pipe open, at gradé with the cellar bottom, with nothing to prevent the water from flowing into the drain, or to prevent the sewage from flowing back through the same. Held, that it was permissible to ask the city engineer, a hydraulic engineer, having general direction of

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