Abbott v. Downs

47 N.E. 94, 168 Mass. 481, 1897 Mass. LEXIS 273

• Court: Massachusetts Supreme Judicial Court
• Decided: May 22, 1897
• Status: Published

Opinion

Holmes, J.

This is a petition by an administrator for leave to sell real estate for the payment of debts. The petition was granted by the Probate Court, and an appeal was taken by Downs and Cooke who set up a title in Cooke coming from the intestate by deeds absolute in form. In a suit between the present parties in which a final decree has not yet been entered, it has been found that the conveyance by the intestate was only a mortgage in equity, and that the petitioner is entitled to redeem. It is not necessary to consider whether under these circumstances the appellants have a locus standi, as we are of opinion that in any event the petition must be granted.

The only objection to the petition is that all debts due from the estate, except what is due to the petitioner, are barred long since, and that he has been guilty of laches in waiting so long, the estate meantime having changed hands. But it is found that Cooke took with full knowledge of all the equities, and under advice of counsel, and it also is found as a fact that the petitioner has been guilty of no laches. We read the finding as applying to the filing of the petition for leave to sell, as well as to the prosecution of it when filed. The evidence is not reported, and therefore, unless we could say, as matter of law, that whatever the circumstances there must have been laches in waiting so long, the petition must be granted. Ames v. Jackson, 115 Mass. 508, 511. It is impossible for us to lay down so sweeping a proposition. It follows that the petition must be granted in respect of the debt due the petitioner, although not of course, in respect of the debts due to others, and barred by the statute of limitations.

Decree affirmed.