O'Hare v. Downing

130 Mass. 16, 1880 Mass. LEXIS 315

• Court: Massachusetts Supreme Judicial Court
• Decided: November 26, 1880
• Status: Published

Opinion

GRAY, C. J.

The points taken in the argument for the defendant are inconsistent with well-settled rules of equity jurisdiption and practice.

A court of chancery will restrain by injunction a threatened levy of execution upon real estate which is not legally subject to such a levy, and thus prevent a cloud upon the title, without compelling the owner of the land to wait until the levy has been completed, and then admit himself to be disseised, in order to maintain a writ of entry. Clouston v. Shearer, 99 Mass. 209. Hinchley v. Greany, 118 Mass. 595. Russell v. Deshon, 124 Mass. 342. Tucker v. Kenniston, 47 N. H. 267.

Notice to the plaintiff in the original action of a hearing before the master in chancery upon the sufficiency of the sureties on the bond to dissolve the attachment, being a prerequisite by the Gen. Sts. c. 123, § 105, to the approval of the bond, is implied in the allegations of the bill that such a bond was given with sureties approved by the master, and was filed with the clerk, and dissolved the attachment; and these allegations are sufficiently full and certain, without specifically alleging such notice. Story Eq. PL §§ 252, 253. Upon the due approval and filing of the bond, the attachment was by law dissolved, without any order of the court to that effect. Gen. Sts. c. 123, § 104. St. 1870, a. 291, § 5.

The attachment having been made before the passage of the St. of 1873, c. 297, and therefore not recorded in the registry of deeds under § 1 of that statute, it would seem that § 2, requiring the clerk of this court to forward to the registry a certificate of the dissolution of the attachment, can have no application; and it is clear that the clerk’s omission to do so cannot continue the attachment in force for the benefit of the plaintiff in the action, and when no third person has acquired any rights under it.

The demurrer was therefore rightly overruled; and, as an answer had been already filed with the demurrer, no order to answer over was necessary. 14th Rule in Chancery, 104 Mass. 571.

The general replication put in issue all the facts alleged in the answer; and the hearing upon bill, answer and replication necessarily involved the trial of those facts, and the consideration of any evidence thereon offered by either party. Story Eq. Pl. §§ 877, 878, 880. 16th Rule in Chancery, 104 Mass. 571. Taunton v. Taylor, 116 Mass. 254, 262.

The statement in the decree, that due notice- was given of the examination of the sureties on the bond, shows that this fact was particularly considered and passed upon by the court, and, while it is perhaps superfluous, as expressing what without it would have been necessarily implied, affords the defendant no just ground of objection.

No report of the evidence having been requested at the hearing below, the only question before the full court is whether the decree conforms to the allegations and prayer of the bill. Gen. Sts. c. 113, § 21. 35th Rule in Chancery, 104 Mass. 574. Stanley v. Stark, 115 Mass. 259. Mason v. Daly, 117 Mass. 403. Iasigi v. Chicago, Burlington & Quincy Railroad, 129 Mass. 46.

Decree affirmed.