Foster v. Stearns

Rugg, C.J.

This is a petition for partition. All the proceedings respecting petition, notice, warrant, report of the commissioners and confirmation of the report of the commissioners are regular in form. No evidence is reported. The judge before whom the case was heard for final decree filed a decision which appears to contain a report of the material facts. A final decree was entered confirming the report of the commissioners, assigning the premises as described in that report, and ordering certain payments between the parties. One of the respondents appealed. Such an appeal brings before us only questions of law apparent on the face of the record. Clough v. Cromwell, 250 Mass. 324, 329 . There is nothing to indicate that the partition as made by the commissioners and affirmed by the court was not in conformity to law and entirely just. A separate petition in equity was filed in the Probate Court for an accounting, to which there was a demurrer. It is stated in the decision that in the Probate Court hearings were had on the .matter of “an accounting between the parties with respect to the common lands and at these hearings all the parties regarded the petition in equity for an accounting and the demurrer thereto as waived,” and the parties were heard in the matter of the accounting “under the general statutory equity powers of the court.”

In petitions for partition the Probate Court has by G. L. c. 241, § 25, jurisdiction “to hear and determine all matters of accounting between the parties to the petition in reference to the common land.” There is nothing on this record to indicate that proceedings upon this branch of the case were not strictly in accordance with the statute and within the jurisdiction of the court. O’Connor v. Boyden, 268 Mass. 111 . There is nothing at variance with this conclusion in Moseley v. Moseley, 240 Mass. 22 .

Decree affirmed.