Bishop v. Burke

93 N.E. 254, 207 Mass. 133

Opinion

Sheldon, J.

The correctness of the rulings made at the trial depends, as to each one of the issues, upon the question whether there was any evidence tending to prove the affirmative of that issue. The report of the judge of the Land Coiirt made a prima facie case for the tenant, and required a negative answer to each issue unless there was some evidence to the contrary. See St. 1905, c. 288, which had not been repealed when the appeal in this case was taken and entered.

* It was assumed, although that question is not before us and we express no opinion upon it, that if these issues were found in the affirmative, the effect of the tenant’s first deed, from a grantor having then merely the right to enter for breach of a condition and not holding any estate in the land, was merely to extinguish or suspend that, right of entry and the condition upon which it depended, and to give an absolute power of disposal to the general owner, under whom the demandant claims. Thompson v. Bright, 1 Cush. 420, 428. Guild v. Richards, 16 Gray, 309, 317. Hubbard v. Hubbard, 97 Mass. 188. Hopkins v. Smith, 162 Mass. 444, 447.

1. Without passing at all upon its weight, we are of opinion that there was evidence that this deed was authorized by the Convention. The bare production of the deed, duly executed in its name by its treasurer, with its corporate seal affixed, was some evidence that its execution and delivery had been authorized. Burrill v. Nahant Bank, 2 Met. 163, Parker v. Washoe Manuf. Co. 20 Vroom, 465. Crumlish v. Railroad, 32 W. Va. 244. Reed v. Bradley, 17 Ill. 321. Smith v. Smith, 62 Ill. 493, 497. The authority which it could be found had been given to sell this property could be found to include authority to execute whatever deeds were thought necessary to pass the title. Alger v. Fay, 12 Pick. 322. Valentine v. Piper, 22 Pick. 85, 90.

2. As to the second issue, the testimony that the deed had been handed to him by the treasurer of the Convention in the attempted completion of a sale which the treasurer was authorized to make, and that it had for more than three months remained in the possession and control of the tenant, was evidence that it had been duly delivered to him. Ward v. Lewis, 4 Pick. 518, 520. Valentine v. Wheeler, 116 Mass. 478. Butrick v. Tilton, 141 Mass. 93. Jones v. New York Life Ins. Co. 168 Mass. 245. There was also evidence that there had been no absolute unconditional delivery of the deed; but the question was for the jury. Whether the demandant would derive any benefit from prevailing upon this issue if he failed to support the affirmative of one of the other issues, we have not now to consider.

3. The verdict upon the third issue was rightly ordered. It could no doubt have been found that the Convention by accepting the tenant’s money ratified the sale to him and all the steps thereto that would have been appropriate for the carrying out of that sale. But it would not follow that it ratified an act of the treasurer which, if the demandant’s contention is sound, could tend only to prevent the carrying out of the sale which it intended to ratify. And we find no evidence that either the Convention or its executive committee intended to adopt blindly whatever had been done by the treasurer, or acted with knowledge of what he really had done. Unless one of these alternatives were proved, its acceptance of the purchase money would not be a ratification of the act of its treasurer in giving the deed to the tenant. Murray v. Nelson Lumber Co. 143 Mass. 250. Foote v. Cotting, 195 Mass. 55, 62. There was such evidence in Monnahan v. Judd, 165 Mass. 93, and Beacon Trust Co. v. Souther, 183 Mass. 413.

The verdict upon the third issue must stand; but the demand-ant’s exceptions must be sustained as to the first and second issues, and there must be a new trial upon those issues only.

So ordered.

The repealing statute is St. 1910, c. 560, § 2.