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(146 N.E.)

Appeal from Superior Court, Suffolk County; Morton, Judge.

Bill by Charles H. McGlue, receiver in bankruptcy of Joseph H. Loudon, against Joseph H. Loudon and another, trustees of the Quaboag Realty Associates, and others, to recover property alleged to have been conveyed by bankrupt in fraud of creditors. Decree for plaintiff, and defendant Charles D. Rood appeals.

Affirmed.

Chas. S. Ballard and Chas. J. Weston, both of Springfield, for appellant.

David J. Kelley, of Boston, for appellee.

BRALEY, J. The defendant Charles D. Rood, the appellant, contends that the fifth paragraph of the final decree is erroneous. It provides:

[2] Under the association agreement and | ruptcy Act, § 47a (2), as amended by Act Cong. the agreement of indemnity Magune has no June 25, 1910, § 8 (U. S. Comp. St. § 9631), word in the final determination of the pol- as against receiver in bankruptcy of mortgaicy or in the management of the firm busi- gor. ness; he has no interest as an owner in the property of the firm; he has no right to share in its profits; he is not liable to make contribution; he could not have an accounting in equity; he is indemnified against all losses and obligations; his real and only concern being that the firm and the members of the firm shall remain sufficiently solvent to pay the fixed annual sum of $650, for his nominal association as a partner, with the active, controlling members of the partnership firm. A partnership is an association of two or more persons to carry on as coowners a business for profit. St. 1922, c. 486. Meehan v. Valentine, 145 U. S. 611, 623, 12 S. Ct. 972, 36 L. Ed. 835. There must be a voluntary contract of association for the purpose of sharing the profits and losses, as such, which may arise from the use of capital, labor or skill in a common enterprise, and an intention on the part of the principals to form a partnership for that purpose. Bacon v. Christian, 184 Ind. 517, 521, 111 N. E. 628; In re Marcuse & Co. (C. C. A.) 281 F. 928, 939; Dwinel v. Stone, 30 Me. 384; Westcott v. Gilman, 170 Cal. 562, 568, 150 P. 777, Ann. Cas. 1916E, 437; Thompson v. Holden, 117 Mo. 118, 128, 22 S. W. 905; McDonald v. Matney, 82 Mo. 358; Bestor v. Barker, 106 Ala. 240, 17 So. 389; De Rees v. Costaguta (C. C. A.) 275 F. 172; McMurtrie v. Guiler, 183 Mass. 451, 453, 67 N. E. 358; Rosenblum v. Springfield Produce Brokerage Co., 243 Mass. 111, 115, 137 N. E. 357. As between Magune and the other partners, the agreement created no such community of interest in the whole property and business as is the essence of a partnership agreement under the decisions above referred to; and as against the rights of the plaintiff it created a partnership in name only.

"That the mortgage on personal property of 1921, given by the defendant Loudon to the the Quaboag Realty Associates dated June 25, defendant Rood to secure the payment of money loaned to the defendant Loudon for which he gave the defendant Rood a note of the Quaboag Realty Associates for $2,000, was not recorded as required by law and is not valid mortgage as against the plaintiff. The defendant Rood is ordered to discharge the same."

The master to whose report Rood took no exceptions, finds that the mortgage in question of an automobile and fourteen head of live stock was not recorded within 15 days from the date written in the instrument as required by G. L. c. 255, § 1. The appellant while conceding it was valid only as between the parties, or those claiming under them, argues that the mortgage having been given in the name of the Quaboag Realty Associates, organized under a written declaration of trust with a capital of 100 transferable shares, 98 of which were owned by Loudon,

It results that the decree must be reversed the bankrupt and managing trustee, who

with costs.

Decree accordingly.

McGLUE v. LOUDON et al. (Supreme Judicial Court of Massachusetts. Suffolk. Jan. 30, 1925.)

I pledged them to Rood to secure his personal loans other than the loan in question, the reIceiver is a shareholder, or associate, and therefore a party to the mortgage. If Loudon was adjudged a bankrupt, the trustee would have all the rights of a judgment creditor against whom the mortgage on the record would have been void. U. S. St. 1898, c. 541, § 47a (2), as amended by U. S. St. 1910, c. 412 (U. S. Comp. St. § 9631). HasBankruptcy 184(2) — Unrecorded mortgage kell v. Merrill, 179 Mass. 120, 60 N. E. 485; of association practically owned by bankrupt Clark v. Williams, 190 Mass. 219, 76 N. E. held invalid as against receiver in bankruptcy. 723; Goodrich v. Dore, 194 Mass. 493, 80 N. Where mortgage on personal property of E. 480. See Duffy v. Charak, 236 U. S. 97, realty association, given by bankrupt, owning 35 S. Ct. 264, 59 L. Ed. 483, where it was as98 per cent. of its shares, to secure payment of money loaned him and for which he gave his sumed that a trustee in bankruptcy is not note, was not recorded, as required by G. L. a party to an unrecorded mortgage of pere. 255, § 1, it was not valid, in view of Bank-sonal property within the meaning of our

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Inde

C. B. Terry, of Gloucester, for appellant.
E. S. Abbott, of Boston, for appellees.

statute. The bankruptcy court, however, up- | beth M. Burnham, to enjoin defendants from on the filing of the petition could appoint a emptying waste into a certain drain. From receiver to take possession of all the prop- decrees dismissing the bills, plaintiff appeals. erty of the bankrupt which the trustee could | Reversed, and cases to stand for further proreach and administer and hold it subject to ceedings. the further order of the court. U. S. St. 1898, c. 541, § 2 (3), being U. S. Comp. St. § 9586. It was the duty of the plaintiff to recover and to protect the bankrupt's estate until the petition was dismissed or a trustee appointed, and, not being a party to the mortgage, but acting solely in the interests of the bankrupt's creditors, who before bankruptcy could have attached, seized, and held the property, he is entitled to the relief given. Haskell v. Merrill, supra; Davis v. Mazzuchelli, 238 Mass. 556, 131 N. E. 186; In re Schoenfield (D. C.) 190 F. 53, 59; Sharpe v. Doyle, 102 U. S. 686, 26 L. Ed. 277. The decree must be affirmed with costs of the appeal.

Ordered accordingly.

A. W. DODD & CO. v. TARR.
SAME v. BURNHAM.
(Supreme Judicial Court of Massachusetts.
Essex. Jan. 30, 1925.)

1. Municipal corporations 710-Property
owners claiming under license to city, which
it never exercised, held not licensees to use
drain.

Where plaintiff granted revocable license to city to use his land for construction and maintenance of drain, but city never exercised license, and drain was constructed by private contributions, and city never exercised right to make repairs, other property owners had no right as licensees to use drain.

2. Licenses 51-License to maintain drain appurtenant to lands conveyed, and not to be enlarged to include other lands.

License to city to maintain drain "as it now stands," contained in deed to city, was appurtenant to estate conveyed, and could not be enlarged by construction to include lands of other

owners.

3. Injunction 113-Property owner not estopped by laches to enjoin emptying of sewage through his property.

Where property owners, who emptied sewage into drain crossing plaintiff's property, did not rely on representations or inaction of plaintiff's predecessors in title, who were unaware of defendant's use of drain, and plaintiff did not discover it until November, 1918, and filed bill to restrain use by defendants January 8, 1919, there was no unreasonable delay or acquies

BRALEY, J. The city of Gloucester, the domicile of the parties has never established a system of sewerage. But prior to 1874 an open brook, having its rise in swampy land and fed by springs, ran from Prospect street on the north, which was laid out in 1835 when Gloucester was a town, down the easterly side of Chestnut street, laid out in 1850 by the selectmen, on the westerly side of which the premises of the defendant Tarr abut. It flowed for many years in an open channel to within a short distance of Main street on the south, where, crossing under the street, it passed over land owned since February 16, 1907, by the plaintiff, to the sea. A sidewalk, at some time not shown by the record, was built over the brook for substantially its entire length from Prospect street to the northerly side of Main street, and the city, at the corner of Main and Chestnut streets, built a catch-basin and connected it with the brook. Andrew W. Dodd, one of the plaintiffs' predecessors in title, owned and occupied premises on the north side of Prospect street as a home from 1881 to January 4, 1889, when he conveyed the property to the city. It is referred to in the master's report as the "Huntress Home." Dodd, previous to 1884, laid a pipe drain under Prospect street and over private land to Chestnut street, where it was connected

with the covered drain into which waste and sewage were discharged. The defendant Tarr, whose premises are connected with the drain, acquired title March 15, 1900. The defendant Burnham has owned her property since 1897, which abuts on the northerly side of Prospect street and by intermediate drains has also been connected with the Chestnut street drain. The estates of Dodd, Tarr, and Burnham are on the record the only estates which have used the drain. The defendants however, have acquired no rights by prescription and, unless they have been licensed, or have an easement by grant, they are trespassers. Bigelow Carpet Co. v. Wiggin, 209 Mass. 542, 95 N. E. 938.

[1] May 16, 1884, Dodd and one Charles W. Parsons, the plaintiffs' predecessors in title and owners of seven-ninths of the land and dock, by an indenture under seal with the city, licensed, permitted and empowered the municipality to construct and maintain Appeal from Superior Court, Essex Coun- through their land on the easterly side of ty; J. Walsh, Judge.

cence.

Separate bills by A. W. Dodd & Co. against D. Chester Tarr and against Eliza

Pearce street a drain, which now runs easterly from said street, with a clause of revocation, upon six months' notice in writing,

(146 N.E.)

* *

*

"to be given to the city by the licensors of their intention to revoke." The city covenanted and agreed to construct, within a reasonable time, a catch-basin in Pearce street at the head of the drain in front of the licensors' land, "to be so constructed as to prevent gravel, dirt, sand, and other light material from washing into the dock through said drain; it being understood by and between said parties * that this license and permission is granted upon the express condition and consideration that said city shall fully perform its covenant and agreement as above set forth." The city, however, never acted, and it was not until 1888 when, the cost being paid by private subscription to which Dodd contributed, the natural course of the brook or drain which was "then carrying some sewage from the Huntress Home" was so changed and diverted from its former course at the corner of Main and Chestnut streets, as to run underneath Pearce street, which opened from the southerly side of Main street, and then turned at a right angle and crossed the land in question, discharging into the dock. The course thereafter of the drain below the northerly line of Main street "was entirely beneath the public streets until it entered the plaintiff's land."

It was contended by the defendants before the master that the work of diverting the brook was done by Dodd. But, while Dodd was interested and "had underwritten, as it might perhaps be called, the financing of the work," it was done under the direction of the chairman of the board of health who solicited and obtained the money from those who lived in the vicinity and, because of odors from the sewage, were interested in the relocation. While the city, under the terms of the indenture, is also permitted "at all reasonable times to enter upon said land for purposes of repairing said drain and to repair it," there is no finding that any entry has been made. The license never has been exercised by the city, and it is unnecessary to decide whether if the city had done the work and maintained the drain, and no notice of revocation having been given, the defendants could rely on it as a defense. Ruggles v. Lesure, 24 Pick. 187; Giles v. Simonds, 15 Gray, 441, 77 Am. Dec. 373; Smith v. Gloucester, 201 Mass. 329, 87 N. E. 626. It is manifest, on the foregoing review of essential facts found by the master, that the defendants are not licensees.

[2] The deed from Dodd to the city contains this language:

"A right is granted to said city to have and maintain the drain as it now stands and discharges on my land and wharf."

And the master finds that "the drain as it now stands" is the drain built in 1888, and that the "land and wharf" are the property

of the plaintiff. It is contended by the defendants that they are within its terms. But even if the grant is broadly phrased, with no suggestion of any limitation of time, or restriction as to the volume of sewage, the easement was appurtenant to the estate conveyed. It cannot be enlarged by construction to include the lands of the defendants. Barnes v. Lloyd, 112 Mass. 224; George v. Cox, 114 Mass. 382; Naumkeag Steam Cotton Co. v. American Glue Co., 244 Mass. 506, 139 N. E. 296.

[3] The defendants finally urge that the plaintiff ought not to be permitted to maintain the suit because of its unreasonable delay and acquiescence in what had been done. But the defendants are not found to have relied on any representations, or inaction with knowledge of the facts even on the part of former owners who are not shown to have been aware of the defendants' use of the drain, and the plaintiff apparently did not discover it until November, 1918, when it demanded rental, which, if not paid, "your drain will be discontinued,". and the bill was filed January 8, 1919.

We therefore are unable to discover any evidence of equitable estoppel, or of laches which defeats relief. Sawyer v. Cook, 188 Mass. 163, 74 N. E. 356; Attorney General v. Boston & Albany Railroad, 246 Mass. 292, 298, 299, 140 N. E. 928; Seretto v. Schell, 247 Mass. 173, 177, 141 N. E. 871.

The decree dismissing the bill is reversed and the case is to stand for further proceedings in the trial court. Ordered accordingly.

JASMIN v. MEANEY.

DUBE v. SAME.

(Supreme Judicial Court of Massachusetts. Middlesex. Jan. 21, 1925.)

Master and servant 332 (2)-Responsibility for acts of automobile driver held for jury.

Testimony that after collision defendant, after examining plaintiff's automobile, told her to have it fixed and he would pay expenses, and later requested her to send bill to him, held, with other testimony, to make question of liability for acts of driver one for jury.

Exceptions from Superior Court, Middlesex County; R. W. Irwin, Judge.

Separate actions of tort by Eugenie A. Jasmin and by Mary Dube against Christopher T. Meaney to recover compensation for damages arising out of automobile collision. Verdicts for plaintiffs, and defendant excepts. Exceptions overruled.

S. Kalesky and F. D. Harrigan, both of Boston, for defendant.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 146 N.E.-17

Appeal from Superior Court, Norfolk County; W. Wait, Judge.

Suit by the inhabitants of Canton against the Westbourne Cemetery Corporation of Boston and others, to restrain defendants from using described land for burial or cemetery purposes, in violation of G. L. c. 114, § 34. From decree for complainant, defendants appeal. Affirmed.

PER CURIAM. These are actions of tort, property interest in enforcement of section 34 wherein the plaintiffs seek to recover com- which can be safeguarded by injunction. pensation for damages arising out of the collision of the automobile, owned and operated by one of the plaintiffs, in which both were riding, with an automobile owned by the defendant and operated by one McCarthy. There was testimony to the effect that after the collision the plaintiff Mrs. Jasmin had a conversation with the defendant in which, after having examined her automobile, he told her to have it fixed, mail the bill to him and he would pay the expenses, and that he expected to pay her between $100 and $125, which was the estimated cost of repairing it, and that later the defendant telephoned to inquire if she had had the machine fixed and, on being told that she had not, he requested her to send him the bill as soon as the repairs were made. There was other testimony bearing upon the question whether McCarthy at the time of the collision was the agent of the defendant acting within the scope of his authority.

Verdicts could not rightly have been directed for the defendant upon this state of the evidence. The statements made by the defendant to the plaintiff Mrs. Jasmin do not appear to have been made for the purpose of compromise. They may have been found by the jury to have been admissions of liability, including, so far as necessary to that end, responsibility for the negligence of McCarthy. The case is governed by several

recent decisions. Dennison v. Swerdlove, 250 Mass. 146 N. E. 27; Wiseman v. Rome, 250 Mass. -, 146 N. E. 28; Mielke v. Dobrydnio, 244 Mass. 89, 92, 138 N. E. 561; Ellis v. Pierce, 172 Mass. 220, 51 N. E. 974. Exceptions overruled.

INHABITANTS OF CANTON v. WEST-
BOURNE CEMETERY CORPORATION
OF BOSTON et al.

(Supreme Judicial Court of Massachusetts.
Norfolk. Jan. 30, 1925.)

1. Cemeteries 9-"Permission of town" for

ing.

Under St. 1855, c. 257; Gen. St. c. 28. §§ 5, 11; Pub. St. c. 82, §§ 18, 21; R. L. c. 78, § 30; and St. 1908, c. 379, § 1, "permission of town" which must be given before land can be used for new cemetery, or extension of old one must result from vote of inhabitants of town in town meeting legally assembled. 2. Cemeteries 9-Statute regulating location of cemetery enforceable by injunction

J. F. Creed and J. J. Mansfield, both of Boston, for appellants.

F. G. Katzman, of Hyde Park, J. P. Vahey, of Plymouth, and R. Clapp, of Boston, for appellee.

PIERCE, J. This is a suit in equity to restrain the defendants from using a described tract of land, situated in the town of Canton, for burial or cemetery purposes in violation of G. L. c. 114, § 34. It comes before this court on an appeal from a final decree of a judge of the Superior Court, enjoining the defendants and those claiming under them from using, maintaining or laythe purpose of burial or other cemetery puring out the land described in the decree "for poses." No question is raised as to the form of the decree.

decision are that one Ross, in October, NoSuccinctly stated the facts material to the vember and December, 1919, conveyed to the defendant Westbourne Cemetery Corporation the tract of land described in the bill of complaint. This defendant acquired the title to the land with the intent to establish a Jewish cemetery and, for profit to the corporation, to sell therein lots to Jewish societies and individuals. In furtherance of its purpose, in October and November, 1919, it sold portions of said land to the remaining defendants, and deeds therefor were duly executed. With the permit of the board of health of the town of Canton, two interments were made in November and December, 1919, by the defendants Trainor and Lemkin. An application to the board of health for approval of the location of the cemetery was

cemetery must result from vote in town meet- duly published by the direction of the board of health three weeks in a newspaper published in the town of Canton. hearing was had on the petition on October A public 14, 1919, the application was granted on October 15, 1919, and notice of such given the petitioners. No appeal from the action of the board of health was taken by any person under the right reserved by G. L. c. 114, § 36. Without any public hearing, on October 25, 1919, the selectmen of the town of Canton voted to grant a permit to the defendant corporation to use the land in question for cemetery purposes. Thereafter the corporation expended money in improvements of

Iat suit of town.

When permission of town to use land for cemetery purposes has not been obtained in accordance with G. L. c. 114, § 34, town has

(146 N.E.)

the tract of land for cemetery uses and sold lots to various societies, who are defendants in this suit. In pursuance of an article in a warrant issued on December 15, 1919, the town in town meeting on January 5, 1920, voted to appoint and did appoint a committee to 'begin proceedings to prevent the corporation from using the land, which it had then acquired as a cemetery. This 'bill in equity was brought within twenty-five days of the appointment of the committee. [1] An examination of St. 1855, c. 257, Gen. St. c. 28, §§ 5, 11, Pub. St. c. 82, §§ 18, 21, R. L. c. 78, § 30, St. 1908, c. 379, § 1, makes plain that the permission of the town which must be given before land can be used for a new cemetery or extension of an old one is a permission which must result from a vote of the inhabitants of the town in town meeting legally assembled. In the case at bar no statute and no vote of the town gave the selectmen any right to act in behalf of the town. Woodlawn Cemetery V. Everett, 118 Mass. 354; Bean v. Hyde Park; 143 Mass. 245, 9 N. E. 638.

See Worcester Board of Health v. Tupper, 210 Mass. 378, 96 N. E. 1096. Decree affirmed with costs.

BREWSTER et al. v. COMMISSIONER OF
CORPORATIONS AND TAXATION.
(Supreme Judicial Court of Massachusetts.
Suffolk. Jan. 28, 1925.)

Taxation

104-Resident executors appointed under foreign will, not acting as trustees, held not liable for income tax on sale of intangibles.

Executors, residents of Massachusetts, appointed in sister state, in which will was probated, and who did not act as trustees, could not be taxed, under G. L. c. 62, §§ 5, 10-13, on income received for sale of intangible personal property.

Report from Superior Court, Suffolk County; Philip J. O'Connell, Judge.

Complaint by Frank Brewster and another, as executors of the will of Arthur B. Em

mons, late of Newport, R. I., against Henry
Taxation, for abatement of income tax. On
F. Long, Commissioner of Corporations and
Abatement
report from the superior court.
granted, and tax paid ordered repaid.

H. M. Davis, of Boston, for complainants. A. Lincoln, Asst. Atty. Gen., for respondent.

CARROLL, J. The complainants, citizens and inhabitants of this Commonwealth, are executors of the will of Arthur B. Emmons, an inhabitant of the state of Rhode Island, which will was admitted to probate by the probate court of the city of Newport, R. I., August 24, 1922. They bring this complaint under G. L. c. 62, § 47, for an abatement of a tax on income assessed against them.

[2] The serious question is whether a bill in equity at the instance of the town will lie to enjoin the use of land for cemetery pur poses, when permission of the town has not been obtained for such use in accordance with the provision of G. L. c. 114, § 34, or whether the sole redress is by indictment. after the offense is complete. Attorney General v. Metropolitan Railroad, 125 Mass. 515, 28 Am. Rep. 264; Kenney v. Consumers' Gas Co., 142 Mass. 417, 420, 8 N. E. 138; Cambridge v. John C. Dow Co., 185 Mass. 448, 451, 70 N. E. 447; Thayer v. Kitchen, 200 Mass. 382, 386, 86 N. E. 952; O'Keefe v. Sheehan, 235 Mass. 390, 398, 126 N. E. 822. St. 1855, c. 257, provided a penalty for interments in violation of the statute, to be recovered by indictment for the use of the town, and nothing is said as to any other judicial remedy. The provision as to the use One thousand shares of American Can of the penalty disappeared in the revision of Company stock and 1,200 rights to subscribe the laws in 1860 (see Gen. St. c. 28, §§ 5, 11). to new shares of the American Telephone & The provision as to the penalty has other Telegraph Company, belonging to the estate, wise perdured until re-enacted in G. L. c. 114, were sold by the complainants. The defend34. The public health, comfort and wel- ant assessed to the complainants a tax on fare are the sanction giving validity to leg- $47,701.45, this amount being the difference islative acts which restrain citizens in the between the total amount received by the full use and enjoyment of their property. executors from the sale of the securities and Woodlawn Cemetery v. Everett, supra. The rights and the cost of the securities to the Act of 1855, c. 257, and the acts which con- testator. Bingham v. Commissioner of Cortinue it, even to G. L. c. 114, § 34, have for porations and Taxation, 249 Mass. 79, 144 their end the same purpose as the zoning N. E. 77, had not been decided when the tax acts and acts which are specifically directed was assessed and the defendant concedes to the preservation of the public health. We that the complainants are entitled to a parthink a town in the circumstances herein tial abatement, but contends that the execudisclosed has a property interest in the en- tors are liable to a tax on the gain on sale of forcement of the provisions of G. L. c. 114, the American Can Company stock over its 34, which a court can safeguard by in-value at the time of the testator's death. junction in the exercise of the general equity There was no real estate belonging to the Jurisdiction of the court. testator in this commonwealth. About one

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