Squire v. Hewlett , 141 Mass. 597 ( 1886 )

Field, J.

This is not a bill in equity to recover possession of land, or to obtain a conveyance of land, or to declare void the deeds of land which have been given to the defendant. Before this suit was brought, the plaintiff had brought writs of entry against this defendant and one Lucia W. Chamberlin, to recover possession of both of the parcels of land described in the bill, and these actions are pending. This suit is brought for the appointment of a receiver of the rents and profits of the land until the determination of the actions at law, and for an injunction restraining the defendant from meanwhile collecting the rents and profits.

The plaintiff asks that, if the bill cannot be maintained as it stands, the decree dismissing it may be reversed, and he be permitted to amend it into a bill for the recovery of the land. There are many reasons why this cannot be done. The defendant is the owner of the equity of redemption of one of the parcels of land subject to two mortgages, as well as the owner of the second mortgage, and has made an entry to foreclose this mortgage; he is likewise the owner of a mortgage upon the second parcel of land, and has also made an entry to foreclose this mortgage, and is in possession and in receipt of the rents and profits of both parcels. The plaintiff is the assignee in insolvency of John Lincoln and Yolney R. Chamberlin, copartners under the style of Lincoln, Chamberlin, and Company, and claims title as such assignee through Yolney R. Chamberlin, who, as the plaintiff avers, has made, or procured to be made, the conveyances to the defendant, in fraud of his creditors. The cause having been heard on its merits, if the decree dismissing the bill, as the case stands, ought to be affirmed, the decree should not be reversed to enable the plaintiff to amend his bill so as to state a different case and pray for a different remedy. The cause is in the Superior Court, application to amend the bill must be made there, and should be made before final judgment in that court; and, without considering whether it is within the power of this court to reverse a final decree properly made in the Superior Court, solely for the purpose of enabling a party to apply to that court for leave to amend his pleadings, it clearly should be done only to supply formal defects, or when the plaintiff would otherwise be subject to substantial injury.

The writs of entry pending when this suit was brought are the proper proceedings to try the title and recover possession of the land, because the defendant is in possession. Clark v. Jones, 5 Allen, 379. Metcalf v. Cady, 8 Allen, 587. Clouston v. Shearer, 99 Mass. 209. Swamscott Machine Co. v. Perry, 119 Mass. 123.

If it were true that, since the passage of the St. of 1875, c. 235, (Pub. Sts. c. 151, § 3,) a court of equity has' jurisdiction concurrently with a court of law to try the title to land fraudulently conveyed to, and in the possession of, the defendant, still the pendency of the writs of entry brought for that purpose before this bill was filed would be a sufficient reason why the plaintiff should not be permitted to amend his bill as he desires. But the St. of 1875, c. 235, gives jurisdiction in equity to reach, and apply in payment of a debt, property fraudulently conveyed, and it is, to say the least, doubtful if it extends to an assignee in insolvency, who sues, not as a creditor to collect a debt, but in his representative capacity for the benefit of the insolvent estate.

As a bill brought for the appointment of a receiver of rents and profits pending the determination of the actions at law, it was, on the facts found by the justice of the Superior Court, rightly” dismissed. Mesne profits are recoverable in writs of entry by statute ; Pub. Sts. c. 173, §§ 12 seq.; and the remedy provided by the statute supersedes all common law remedies. Raymond v. Andrews, 6 Cush. 265. The bill is brought as ancillary to the actions at law, and for the purpose of securing the rents and profits to the plaintiff, if he obtain judgment for them in those actions. The counsel for the plaintiff has shown no precedents for such a bill in this Commonwealth. Taylor v. Robinson, 7 Allen, 253, resembles, in some respects, this suit; but there the bill was dismissed. If it be assumed that there might be a state of facts in which such a bill could be maintained, in this Commonwealth, it is clear that, on the facts found in the report, this bill must be dismissed. The parties claim under legal titles; no mismanagement or waste on the part of the defendant is found; she is not insolvent, nor is there extraordinary danger that she will not be able to satisfy any judgments which the plaintiff in his actions at law may obtain against her; and the plaintiff’s superior right is not so certain that different tribunals might not fairly reach different conclusions. 3-Pom. Eq. § 1333, and cases cited.

The request that the bill should be dismissed without prejudice to the actions at law is unnecessary, because the record shows that the bill was not dismissed on any ground which can prejudice the plaintiff in prosecuting his actions.

Decree affirmed.