Travis v. Tyler

73 Mass. 146

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1856
• Status: Published

Opinion

Dewey, J.

The position taken by the plaintiff is that the bill states a case for relief in equity, as it shows that the defendant unlawfully retains possession of a deed duly executed and delivered to the plaintiff, and of which he ought now to be in possession, as his property. If this is the whole case of the plaintiff, then the bill does not state a case within the equity jurisdiction of the court, as it is not stated that the deed is “secreted or withheld, so that the same cannot be replevied.” Rev. Sts. c. 81, § 8. If the deed was in fact duly executed and delivered, as seems to be the allegation in the bill, then the remedy is at law, by an action of tort or replevin.

This view of the facts would also show that no proper vase exists for a decree for specific performance of any contract to convey lands.

As to any proceedings against the wife of the defendant by making her a party to the bill, that objection cannot avail, as there is nothing in the case to show any agreement on her part to release her dower, and no decree of this court to that effect would be made upon the mere contract of the husband that he would procure her release of dower. That is a right of the wife, wholly independent of her husband, and not to be affected by his contracts. The bill could not, in any form in which it could be drawn as to parties, be sustained against the wife.

Demurrer sustained