Gurney v. Waldron , 1884 Mass. LEXIS 276 ( 1884 )

Holmes, J.

The Pub. Sts. c. 176, expressly contemplate the case of more than one person making a claim adverse to the petitioner, and allow the claimants to be joined as respondents in a petition to settle the title. As joint titles are rare, and as by the Pub. Sts. c. 173, § 7, tenants in common can join in a real action, the reasonable interpretation of the general language of c. 176 is, that persons setting up a claim in the same right as tenants in common may properly be joined as respondents in a petition to compel them to sue, notwithstanding the fact that their alleged titles are several.

Again, a petition to compel parties to sue is not necessarily governed by the same rules as the suit itself. It would seem from the whole scope of the statute, as well as from the fact that the proceeding ends in a decree, not in a judgment, that the act had the analogies of equity in view, rather than those of real actions, and that it took its pattern from bills of peace. The court is to “ make such decree respecting the bringing and prosecuting of such action as may seem equitable and just.” Hence, even if for any reason all the tenants in common cannot be required to join in one suit, the court may order that the title of all with whom it deals shall abide the result of one action, or that several actions shall be brought by the several respondents when that is necessary to protect their rights.

The petitioners’ rights were fixed at the moment the petition was filed. The fact that proceedings to which they were strangers were then pending between the respondents was no concern of theirs. They had as much right to proceed when they did, as at any other time. At that moment the respondents claimed as tenants in common, and the subsequent partition can affect nothing but the form of the decree. So of the partial disclaimer founded on that partition. See Jackson on Real Actions, 99; Co. Lit. 362 b. The respondents still set up a derivative claim. Again, the possession taken by some of the respondents is no bar; for, whatever might be the effect of a voluntary yielding of their possession by the petitioners, the statute cannot be defeated by a disseisin.

Margaret Taffe stands in a different position from the other respondents. She is alleged and admitted to be under guardianship as insane, and, although she is not found to be insane in fact, she is assumed to be so by the petitioners’ argument. We are not prepared to say that insane persons are tacitly excepted from the general words of the statute in such a sense that a petition cannot be maintained against them under any circumstances. At the present day, the disqualifying effect of insanity is not sweeping and indiscriminately universal. An insane man can make an adverse claim and maintain an action. Under some circumstances, therefore, if he does the first, he may be required to do the last. On the other hand, in order to sue, he must be represented by, a guardian. Pub. Sts. c. 139, § 29. And therefore his ability to do so will depend on whether the guardian has funds. It follows that, if a petition like the present were granted in all cases, injustice would sometimes be done. Again, when the statutes exempt insane persons from the ordinary obligation to sue within the period of limitation in order to preserve their rights, (Pub. Sts. c. 196, § 5; c. 197, § 9; Edson v. Munsell, 10 Allen, 557,) although that is not a sufficient reason for reading a like exception into an act from which it is omitted, it is a very good one for using a cautious discretion in imposing a more stringent and burdensome necessity, if the act does not exclude its exercise. We think that such a discretion is permitted in the power to make such decree as may seem equitable and just.

In the present case, it seems to have been ruled that the petitioners were entitled to maintain their petition against Margaret Taffe, as matter of law. It will be necessary, therefore, before a decree is entered, that a single justice shall consider and determine the propriety of allowing them to do so, under the circumstances of the particular case, as a matter of discretion. It follows from what has been said earlier in this opinion, that a dismissal of the petition as to this respondent will not prevent its being maintained against the others.

John Taffe’s disclaimer was founded on the partition, and, as he made claim when the petition was filed, he will take costs only from the date of the answer. Jackson on Real Actions, 99. See P,ub. Sts. c. 173, § 9.

Case remitted for further proceedings.