City of Boston v. Robbins , 1879 Mass. LEXIS 269 ( 1879 )

Soule, J.

The bill of exceptions shows that the estates of the tenant for years and of the reversioner each extended to the whole of the land taken by the plaintiff in review. The case, as now presented, is in this respect the same as when it was last before us. Boston v. Robbins, 121 Mass. 453. The provisions in the lease giving the lessee rights which were not incident, as of course, to his tenancy, and imposing on him duties which do not necessarily fall on a lessee for years, were not such modifications of the relation of the tenant and the reversioner as to make their interests other than merely successive in point of time in the whole premises taken. The damages for the land taken were therefore to be assessed and awarded in a gross sum, and were payable to a trustee to be appointed in accordance with the Gen. Sts. a. 43, §§ 17, 18. It follows that the judge of probate had jurisdiction of the subject-matter of the petition of Simonds for the appointment of a trustee to receive and collect the damages. This being so, the decree appointing the defendant as such trustee, not having been reversed on appeal, is conclusive, and cannot be impeached in this action at law in a court of common law jurisdiction, by a party having no interest in the question presented by the petition. Dublin v. Chadbourn, 16 Mass. 433. Emery v. Hildreth, 2 Gray, 228. Parker v. Parker, 11 Cush. 519. Pinney v. McGregory, 102 Mass. 186.

By the St. of 1866, c. 174, § 3, the damages, for the land taken, as estimated by the board of aldermen, became payable in the manner provided by the Gen. Sts. c. 43, § 18. By the decree of the judge of probate, the defendant became entitled to collect the amount as trustee for the parties in interest. Having demanded payment, which was refused, his only remedy was by action of contract.

The agreement of arbitration, and the proceedings under it, and payment by the plaintiff to Turner, do not affect the rights of the defendant. Jonathan B. Simonds and George W. Simonds were interested in the damages only as owners in trust of the land taken. One of the trustees had no power to make conveyance of any part of the trust property, nor to make any agreement for disposing of any part of it, without the assent and cooperation of his co-trustee. The arbitration and award under it were therefore void as against the trust estate. Chapin v. Chicopee Universalist Society, 8 Gray, 580. Austin v. Shaw, 10 Allen, 552.

The ruling that the plaintiff in review could not recover was correct.

Exceptions overruled,.