Daniell v. Shaw

44 N.E. 991, 166 Mass. 582, 1896 Mass. LEXIS 178

• Court: Massachusetts Supreme Judicial Court
• Decided: October 21, 1896
• Status: Published

Opinion

Allen, J.

The defendant contends that the plaintiff is not able to offer him a good title, by reason of the provisions of St. 1891, c. 323, as amended by. St. 1892, c. 418, and the acts of the board of survey of the city of Boston thereunder. The plaintiff concedes that his title is not good if the statute is constitutional. The parties also differ in their construction. of the statute. The city of Boston is interested in both of these questions. It has been allowed to file a brief, but it is not a party to the record, and would not be precluded from litigating the same questions anew if our decision in the present case were for the plaintiff. The defendant would be exposed to the chance of such litigation if compelled to accept the title now offered. By the concession of the plaintiff, the statute, if constitutional, creates an encumbrance on his title. The plaintiff asks us to declare his title good, by declaring the statute unconstitutional. The defendant ought not to be compelled to accept such a title. Jeffries v. Jeffries, 117 Mass. 184. Chesman v. Cummings, 142 Mass. 65. Hunting v. Damon, 160 Mass. 441. Abbott v. James, 111 N. Y. 673. Fleming v. Burnham, 100 N. Y. 1, 9. Bill dismissed.