accident, was being done under his immediate personal direction and superintendence. There is no doubt that the plaintiff was in the exercise of due care. Is there any evidence of negligence on the part of Lowrey? If there is, do we find any evidence that his negligence was in the capacity of superintendent? It may be that the men whose duty it was to put the fore and after into its socket when it was lowered were negligent. Whether they were or not does not distinctly appear. However that may be, we think there was evidence of negligence in lowering the fore and after in the manner described; so that, if it failed to enter its socket, it would fall on the men below. Not only was Lowrey responsible for the method adopted to do the work, and for the directions given to the other men there, but he with his own hands unwound the rope from the drumhead to the lower fore and after in such a way that he could not control the iron as it was being lowered, and so it fell upon the plaintiff. We have no hesitation in saying that there was evidence of negligence on the part of Lowrey. defendants contend that his negligence, if any, consisted in unwinding the rope from the drumhead, which was the work ordinarily done by a mere employé, and not that of a superintendent. If his only connection with the accident were in this act of manual labor, we should be inclined to adopt the defendants' view. But he had determined upon the method of putting the fore and after in place, and had given directions which made his act of unwinding the rope in its wet condition dangerous to the men below. See McCauley v. Norcross, 155 Mass. 584, 30 N. E. 464. We are of opinion that the part of the work which he did with his hands must be considered in connection with his relations to the work as superintendent, and that we cannot separate it from the other conditions for which he was responsible by supervising and giving orders. A majority of the court are of opinion that there was evidence for the jury on this branch of the case.

The

The wages that the plaintiff was receiving as an employé at the time of the accident might properly be shown as bearing upon the question of damages. Murdock v. Express Co., 167 Mass. 549, 46 N. E. 57; Harmon v. Railroad Co., 168 Mass. 377, 47 N. E. 100. The fact that Lowrey was paid higher wages than an ordinary laborer was a circumstance to be considered in connection with the other circumstances upon the question whether his sole or principal duty was that of superintendence. In many cases it would have little or no significance; but, while alone it would prove nothing, it was proper for the consideration of the jury in the form in which it was stated, and in connection with other evidence bearing upon the question.

The expert was rightly allowed to answer the hypothetical question whether a cer

tain method of lowering the fore and after, which the evidence tended to show was adopted in this case, was a proper method. Exceptions overruled.

TUFTS v. HANCOX.

(Supreme Judicial Court of Massachusetts. Suffolk. May 19, 1898.)

PAROL EVIDENCE-ARRI ST IN CIVIL ACTIONS -RECORD.

1. An incorrect record of a police court cannot be controlled by oral evidence.

2. The statement, "By order of court, certificate not to issue," occurring in a police court record of an examination of one who desired to take the poor debtor's oath, does not mean that the debtor was discharged on the date of that entry.

Report from superior court, Suffolk county; J. B. Richardson, Judge.

Action by George J. Tufts against Benjamin F. Hancox. The court found for plaintiff, and the case was submitted on a report. Judgment on the finding.

Following is the report on which the case was submitted, viz.:

"This is an action on a recognizance under Pub. St. c. 162, § 28, entered into after arrest on execution. The declaration was for alleged breach by default at a time fixed for examination of the judgment debtor, Benjamin F. Hancox. I find that the defendant entered into the recognizance as alleged in the declaration; that the debtor duly gave notice of desire to take poor debtor's oath, and appeared within the thirty days named in the recognizance; that an examination in writing was begun, the said debtor having an attorney of record, and continuances were made from time to time until November 21, 1896, 10 a. m., unless the debtor was discharged and relieved from further attendance for examination after September 5, 1896, by what took place on that day in the police court of Lynn, where the debtor was being examined. So much of the certified copy of the record of said proceedings in said court as was material was as follows: "The Police Court of Lynn. George J. Tufts, of Boston, v. Benjamin F. Hancox, of Saugus. 670. 23 Court St. Jos. G. Holt. Notice of desire to take the oath, December 21, 1895. On file: Notice of desire to take oath, with service. Agreement to continue to January 11, 1896. Examination in writing. Agreement to continue to January 18, 1896.' From which time the examination was continued from time to time until June 13, 1896. 'June 13, 1896. Continued by agreement to September 5, 1896. September 5, 1896, 9 a. m. Debtor present at 10 a. m. By order of court, certificate not to issue. September 5, 1896. Agreement in writing to continue to November 21, 1896, and so continued to November 21, 1896, 10 a. m. November 21, 1896. Debtor defaulted at 11 a. m.' I find that said

agreement in writing last mentioned in said record was made, signed by the creditor, and the debtor's attorney of record, a copy of which is annexed, and mailed from Boston to said clerk at Lynn, on September 3, 1896; was in the office of said clerk before 10 a. m., September 5, 1896. The defendants, for the purpose, as they claimed, ‘of explaining the record,' offered to show by the parol testimony of said clerk, and of the defendant, B. F. Hancox, and of Henry A. Hancox, witnesses, what took place in said court at 10 o'clock on said 5th day of September. The plaintiff objected to such parol evidence, but I admitted it de bene, and permitted the plaintiff, without waiving his objection, to question said witnesses upon the matters to which they testified de bene, and the testimony so given showed the following facts: That at 10 a. m., September 5, 1896, said debtor was present in said Lynn police court, but that his attorney of record was not present. The said creditor was not present, but, at the request of the debtor, an attorney, who was there trying another case for another party in said court, called the attention of the court to this case, and by direction of the court said clerk called the case, and called the name of said creditor, and there was no response. That the court thereupon ordered the clerk to record, 'Certificate not to issue,' and that the court said to the debtor, 'You are discharged; you can go.' The debtor departed. That the clerk, about five to ten minutes after 10 a. m., September 5, 1896, found in his office the written agree. ment of September 3, 1896, and immediately, at the same sitting of the court, showed it to said court, who said, "The case will stand according to the agreement,' and ordered the clerk to record the case continued to November 21, 1896, 10 a. m., in accordance with said agreement, which the clerk did. That said attorney who then acted for the debtor that day in absence of counsel of record was then and there immediately shown said agreement, and was informed that it was the reason for the creditor's absence, and that the judge had said, "This agreement must stand; that this was an agreement for a continuance, and no objection to it was made. I find also that the debtor knew of said continuance to November 21, 1896, at 10 a. m., within two weeks from said September 5, 1896. The defendant requested the court to rule that on the evidence the plaintiff could not maintain this action, but the court refused so to rule, and found for the plaintiff in the sum named in the said recognizance, viz. one thousand dollars. Execution to issue for seven hundred fifty-five and 19/100 dollars. I report the case upon an agreement of the parties that, if the finding for the plaintiff on such evidence as was rightly admitted was warranted, the finding is to stand, and judgment to be given thereon; otherwise new trial to be granted. J. B. Richardson, Judge Superior Court."

Copy of agreement: "Essex-ss.: Police Court, City of Lynn. Tufts v. Hancox. Poor Debtor. Agreement. The above-named case, which was heretofore continued to September 5, 1896, may be again marked 'Continued to November 21, 1896, at 10 o'clock in the forenoon.' Geo. J. Tufts, Creditor. Joseph G. Holt, Atty. for Dr."

G. J. Tufts, for plaintiff. F. M. Davis, for defendant.

FIELD, C. J. It was not competent by oral evidence to control the record of the police court. Sewall v. Sullivan, 108 Mass. 355; May v. Hammond, 146 Mass. 439, 15 N. E. 925; Watts v. Stevenson, 169 Mass. 61, 47 N. E. 447. Evidence that the debtor was discharged on September 5, 1896, tends, we think, to contradict the record that on that day the case was continued to November 21, 1896, at which time the defendant was defaulted. The words in the record, "By order of court, certificate not to issue," are meaningless unless they mean that the certificate prescribed by Pub. St. c. 162, § 40, was not to issue on September 5, 1896; and this is entirely consistent with the record of the continuance. These words cannot be held to mean that the debtor was discharged on September 5, 1896. If the record as it stood was not true, or if it did not contain all that should have appeared of record in the police court, application should have been made to that court to amend it. Judgment on the finding.

CONLEY et ux. v. FINN. (Supreme Judicial Court of Massachusetts. Suffolk. May 19, 1898.)

VENDOR AND PURCHASER-TITLE-SPECIFIC

PERFORMANCE.

1. The fact that a deed under which the vendor mediately derived title was not acknowledged or recorded until after the grantee's death is not such a cloud on the title as to constitute a defense to a suit for specific performance of the agreement to purchase, since delivery is presumed to have been made at the time of execution.

2. Where the paper title of a vendor seeking specific performance of an agreement to parchase land is defective, the lapse may be supplied by parol proof of adverse possession under color of title sufficient to establish ownership.

Report from superior court, Suffolk county; C. S. Lilley, Judge.

Bill by James Conley and wife against Frank Finn. There was a decree for defendant, and the case was reported to the full court. Decree for plaintiffs.

Patten & Nichols, for plaintiffs. D. C. Delano, for defendant.

KNOWLTON, J. This is a bill to compel specific performance by the defendant of his contract to purchase a lot of land with a house upon it. The defense is that the plaintiffs do not offer to give a good title.

They tendered to the defendant a warranty deed of the premises, subject to a mortgage, which, by the terms of the contract, he was to assume and pay, as a part of the consideration. It is agreed that this deed gives a perfect title to the property, unless there is an incumbrance or a cloud upon the title, growing out of the fact that a deed from Nathan Conant to George Footman, under which the title is claimed, and which bears date February 11, 1839, was not acknowledged until August 3, 1859, nor recorded until August 4th of the same year. George Footman, the grantee, died in March, 1859, leaving a will, which was duly proved and allowed. The house and land in question were included in the executor's inventory, as a part of his estate. The title of George Footman, if he had any, has passed by mesne conveyances to the plaintiff. Among these conveyances are two warranty deeds, one from Edwin Rice to Henry T. Wheeler, dated April 23, 1868, and recorded April 28, 1868, and one from John H. Wheeler and others, being all the heirs of Henry T. Wheeler, to the plaintiff, dated June 20, 1889, and recorded June 26, 1889. It is agreed that there is testimony from credible witnesses, who were in a position to know the facts, which tends strongly to show that, from a time prior to 1872, Henry T. Wheeler, and after him his heirs, and after them the plaintiff, occupied the premises under a claim of ownership, living in the house, and maintained a continuous and undisturbed possession from that time until the present, and that none of them ever heard of any claim by Nathan Conant or his heirs, or any person representing them. Albert H. Conant testified that he is a son of Nathan Conant; that his father resided in this commonwealth from 1832 to 1876, and died a resident thereof; that neither said Nathan nor his heirs were ever of unsound mind; and that he never heard of any claim being made by Nathan Conant or his heirs to the premises. It is not suggested that there is any evidence to contradict any of this testimony. The question is whether the fact that the deed from Conant to Footman was not acknowledged or recorded until after the death of Footman makes the plaintiffs' title so doubtful and uncertain that the defendant ought not to be compelled to take the property and pay for it. The general rule is that, in order to maintain a suit for specific performance against a purchaser of real estate, the plaintiff must show that the title is good, beyond a reasonable doubt. Sturtevant v. Jacques, 14 Allen, 523; Hayes v. Cemetery, 108 Mass. 400; Jeffries v. Jeffries, 117 Mass. 187. But the mere possibility or suspicion of a defect is not enough to relieve a purchaser from liability under his contract. Hayes v. Cemetery, ubi supra; Dow v. Whitney, 147 Mass. 1, 16 N. E. 722: Lowes v. Lush, 14 Ves. 547; Franklin v. Brownlow, Id. 550; Pyrke v. Wadding

ham, 10 Hare, 1. In Society v. Brown, 147 Mass. 296, 298, 17 N. E.. 549, Mr. Justice Devens says, of the doubt which will relieve a purchaser of real estate from his obligation specifically to perform his contract, that it "must be reasonable, and such as would cause a prudent man to pause and hesitate before investing his money. It would be seldom that a case could occur where some state of facts might not be imagined which, if it existed, would defeat the title. When questions as to the validity of a title are settled beyond a reasonable doubt, although there may be still the possibility of a defect, such mere possibility will not exempt one from his liability to complete the purchase he has made. * * It would be often practically impossible for the party to negative all objections which might be imagined, and which, if they existed, would defeat his title." In the present case, if the deed from Conant was not executed and delivered in the lifetime of the grantee, Footman, no title passed under it. But the fact that it was not acknowledged or recorded until after the grantee's death does not indicate that it was not delivered on the day of its date. At most, it merely suggests a question in regard to it. The date of a deed is prima facie evidence of its delivery at that date, even though it was not acknowledged until a later day. Smith v. Porter, 10 Gray, 66; People v. Snyder, 41 N. Y. 397; Harman v. Oberdorfer, 33 Grat. 497; Deininger v. McConnel, 41 Ill. 227; Ford v. Gregory, 10 B. Mon. 175. Acknowledgment or equivalent proof is only required as a preliminary to recording. Pub. St. c. 120, §§ 5-9. Although the presumption of delivery of a deed on the day of its date may be contradicted and controlled by evidence to the contrary, there is no such evidence in the present case. Moreover, if there was no title by deed, there is evidence to show a title by adverse possession, which is almost, if not quite, conclusive. We are not prepared to say that in no case would a purchaser be compelled, in equity, to take a title which rests on adverse possession. The case of Noyes v. Johnson, 139 Mass. 436, 31 N. E. 767, does not support the defendant's contention on this point, but was decided on the ground that the special provisions of the contract of sale implied that the purchaser was to have a good title by the record. It has been held, both in England and in America, that a title by adverse possession may be so clearly proved, and be so free from doubt, as to be a proper foundation for a decree for specific performance against the purchaser. Scott v. Nixon, 3 Dru. & War. 388; Games v. Bonnor, 54 Law J. Ch. 517; Ottinger v. Strasburger, 33 Hun, 466; Id., 102 N. Y. 692; Pratt v. Eby. 67 Pa. St. 396-402; Gump v. Sibley, 79 Md. 165, 28 Atl. 977; Hedderly v. Johnson, 42 Minn. 443-445, 44 N. W. 527; Logan v. Bull, 78 Ky. 607. Without going so far as

the courts have gone in some of these cases, and considering the case in the aspect most favorable to the defendant, the evidence makes applicable a doctrine which was stated by Judge Folger in Murray v. Harway, 56 N. Y. 337, as follows: "The courts of equity in this state have not held that a title, though proof thereof rests in part in parol, is for that reason so doubtful and uncertain that specific performance by the purchaser will not be decreed; and it has been held that where one of the paper links of title was defective, the lapse might be supplied by parol proof of possession under color of title sufficient to establish a good adverse possession, and that such a title is enough on which to found a decree." See, also, O'Connor v. Huggins, 113 N. Y. 511, 21 N. E. 184.

In view of all the evidence, we are of opinion that there is no reasonable doubt that the title of the present plaintiff's is good, and that the defendant can take it without special risk of being put to expense to defend his rights against unknown claimants who may appear hereafter. Decree for the plaintiffs.

HAMLEN et al. v. KEITH. (Supreme Judicial Court of Massachusetts. Suffolk. May 18, 1898.) EQUITY JURISDICTION- DEEDS CONSTRUCTIONBUILDING RESTRICTIONS-ENFORCEMENT

-EVIDENCE-DEDICATION.

1. The absence of equity jurisdiction when an instrument is made does not prevent the granting of equitable relief at a later time.

2. The state of the law at the date of a deed may be considered in determining the meaning and operation of its words.

3. A provision in a deed and a vote of a town to sell lands, that all buildings shall be regular and uniform, does not bind the land for all time to an arbitrary building line.

4. An adjoining owner cannot enforce a condition in a conveyance by a town which is based on public interest.

5. The mere fact that adjoining houses are uniform in line does not warrant a finding that it was due to agreement.

6. The front part of defendant's lot was covered with glass and iron, and adapted to lighting the basement, and was used as a pavement. Held, that such use, if a dedication, was a dedication of a part of a highway, and not of a mere footway.

Report from supreme judicial court, Suffolk county; Charles Allen, Judge.

Bill by Nathaniel P. Hamlen and others, trustees, against Benjamin F. Keith. There was a decree for defendant, and plaintiffs appealed, and the case was submitted to the full court on a report. Bill dismissed.

H. W. Putman, for plaintiffs. W. E. Jewell, for defendant.

HOLMES, J. This is a bill in equity, brought to enjoin the defendant from building out upon his land beyond the former front of his building on Tremont street, in Boston. To suit the

defendant's convenience, no preliminary injunction was asked, it being agreed that the defendant would proceed at his peril, and the building now has been erected. It projects about four feet beyond the old line, which is also the line of the other buildings between West and Mason streets. The plaintiff's own the building adjoining the defendant on the Mason street side, and rely upon a condition in a vote and deed of the town of Boston, and also upon the existence of a public way by dedication or prescription.

On May 25, 1795, the town voted to sell all or any parts of a large amount of land opposite the common, on what are now Tremont street and Park street, and including the land between West and Mason streets, "upon express condition that all buildings to be erected on the lands sold by virtue of this vote shall be regular and uniform, and of brick or stone, and covered with slate or tile, or some materials that will resist fire." On January 12, 1796, four large lots, including one called "Lot 5," of which the defendant's land is a part, and one called "Lot 6," of which the plaintiffs' land is a part, were conveyed under this vote to one Henry Jackson by one deed, in which the condition was repeated in the above words. The present parties derive their titles through mesne conveyances from this deed, and this is the restriction upon which the plaintiffs rely. By 1810, or a little later, there was a continuous line of buildings from West street to Mason street, upon a straight line, at a slight angle to Tremont street, but at an average distance from it of about four feet.

We are of opinion that the plaintiffs have no right to an injunction under the foregoing deed. It is true that the absence of equity jurisdiction at the time when an instrument is made is not conclusive against the granting of equitable remedies at a later time (Rogers v. Ward, 8 Allen, 387, 390); but the state of the law at the date of the deed may be taken into consideration, and cautiously used in determining the meaning and operation of its words (Crocker v. Cotting, 166 Mass. 183, 187, 44 N. E. 214; Staigg v. Atkinson, 144 Mass. 564, 569, 12 N. E. 354). At the time when the city of Boston conveyed to Jackson, no one, it is safe to say, dreamed that the words quoted could operate except as a condition, or be enforced by any one except the town of Boston. No one dreamed that they gave rights to any one except the town. If, nevertheless, equity subsequently should treat such ancient restrictions as standing on the same footing as later ones with regard to enforcement, at least it would be bound in the matter of construction to interpret the words as they would have been interpreted when written. We must take the words as if their only effect was to create a condition when we are finding out their meaning, even if we should persuade ourselves that they had a latent operation, by way of trust, in favor of the several landowners affected, irrespective of any one's intent or knowledge at the time.

We

Taking the words as a condition which meant forfeiture for breach, we naturally are not disposed to take them as meaning any more than they say in terms, and we should give the grantees the benefit, in case of doubt. do not read the condition as intended to bind the land for all time to a building line inside the boundaries of the conveyance. It says nothing about such a line. If one were mentioned, the case would be very different. The words "regular and uniform" cannot be taken to refer to the line of fronts without something of a strain, for, if they do refer to it, they provide no standard of regularity and uniformity, so that it would seem that the first builder would set the rule for the rest. The vote deals with a large amount of land, not all alike in circumstances, and the condition in terms refers to buildings, not to land. We are of cpinion that the words are given sufficient force if they are confined, at most, so far as the present question is concerned, to the original construction of the buildings first erected, those which it was expected would be erected, and which were erected in fact, soon after the town had made its sales. It seems to us that it would be going too far to interpret the words as binding the owner of every lot into which the land might be cut up to adhere for all time, and under whatever change of conditions and circumstances, to a building line other than that of the conveyances, determined by the accident of what the first builder chose to do.

But, further, we have not been able to persuade ourselves that the condition confers any rights upon the plaintiffs, whatever its construction. The general difficulty which we have stated is made insuperable, to our minds, by the specific purposes shown on the face of the condition itself. The town evidently was considering only appearance and safety from fire, and both only in the public interest. We do not think that the plaintiffs can claim under it, as granted by implication, rights which it is practically certain never were intended to be conferred. The repetition of the condition in the later deeds did not purport to enlarge the obligations or rights originally created, whatever those obligations or rights might turn out to be.

It is argued that the uniformity of the line of buildings warrants the finding of a parol contract which may be enforced. The judge

who tried the case found the other way. The condition in the deeds sufficiently explains how the line of fronts came to be uniform, and it would be extravagant to say that uniformity between adjoining houses, unexplained and by itself, warrants a finding that it was due to an agreement binding the land that the line of building should be the same forevermore.

In 1877 the house on the defendant's land was altered from a dwelling house to a shop. The four feet in question were taken into the basement story, and were covered, at a level with the adjoinging sidewalk, with Hyatt lights, made of iron and glass, and adapted

at once to light the basement and to serve as a pavement for travel. For some years, it may be assumed, the public walked over the space more or less. It is argued that this was a dedication of the four feet as a footway. We rather should have supposed it imported a license than anything more. But, if a dedication was attempted, it cannot be taken to have been a dedication otherwise than as a part of the street of which it formed a part to the eye; in other words, as a highway, not as a footway. The only reason why it was even argued to have been otherwise is because dedication of land for a highway without the consent of the town was then and still is impossible. Gen. St. c. 43, § 82; Pub. St. c. 49, § 94.

It also is argued that there is a way by prescription. It clearly appears that there was no such way when the bill was filed. It would seem that there had been no continuous adverse use for nearly the necessary time when the bill was filed. If there had been such continuous use, it probably was interrupted, and certainly does not appear not to have been, by the erection of the defendant's new building. Finally, if there had been a public way of any kind, either by dedication or by prescription, it is at least doubtful whether that fact would have furnished a ground for the plaintiffs' bill. Harvard College v. Stearns, 15 Gray, 1; Stanwood v. City of Malden, 157 Mass. 17, 18, 31 N. E. 702; Shaw v. Railroad Co., 159 Mass. 597, 35 N. E. 92.

Bill dismissed.

SAUNDERS et al. v. RUSSELL et al. (Supreme Judicial Court of Massachusetts. Suffolk. May 18, 1898.) INSOLVENCY-PREFERENCES-EVIDENCE.

A mortgage was made by an insolventwhose financial reputation was bad, to an employé of a large firm of creditors, who indorsed his note to them. The creditors had demanded security, and were unwilling to accept a mortgage directly to themselves. Held, that all parties must have known of the insolvency, and the mortgage amounted to a preference.

Appeal from superior court, Suffolk county. Suit by one Saunders and others, assignees, against one Russell and others. There was a decree for plaintiffs, and defendants apAffirmed. peal.

Moulton, Loring & Loring, for appellants. E. B. Hale and Caleb Saunders, for appellees.

HOLMES, J. This is a bill in equity, brought by the assignees in insolvency of one Courtemanche, to set aside a mortgage. as a preference. The case was tried in the superior court, and a decree was made for the plaintiffs. It now is here by appeal on the evidence. It presents only questions of fact.

The petition in insolvency was filed on April 16, 1897. The date of the mortgage