Report from Superior Court, Worcester the effect of his condonation and so entitled County; John D. McLaughlin, Judge.

Divorce action by Francis X. Laflamme against Mary H. Laflamme. On report from superior court after ruling against petitioner. Libel dismissed.

him to rest his libel upon her first desertion. If we assume that this reasoning otherwise would be correct, yet we have not here a case of mere condonation, although it doubtless included that element. It was voluntary ac

Wendell Williams and S. D. Vincent, for tion on the part of the libelant, which by

libelant.

SHELDON, J. We must take it that no difficulty arose in this case under the provisions of R. L. c. 152, §§ 4, 6. The only question is whether upon the findings of the judge it ought to be ruled as matter of law that the libel cannot be maintained. We are of opinion that this ruling properly was made.

It is true, as was argued in behalf of the libelant, that in December, 1909, he had become entitled to a divorce from his wife on the ground of her desertion. Cargill v. Cargill, 1 Sw. & Tr. 235. He did not however attempt to avail himself of this right, but

visited her at the house in which she was

living, at Milford in this commonwealth, and remained there with her for about four days. During this period, it is found that "they cohabited together as man and wife." [1] This was a complete renewal in all respects of the marriage relation between them. It was not simply that they occupied the same room and bed, although this also was found. Accordingly we need not consider whether the latter fact alone, unexplained, would not import as a necessary inference the complete cohabitation as man and wife which has been found. The wife's desertion ceased and he again received her as his wife when they thus resumed the matrimonial relations that had been interrupted in 1906 by her desertion. If afterwards, no matter how soon, she deserted him anew, this was merely a new act of misconduct on her part. [2] But it is not barely "utter desertion for three consecutive years" that is a ground for divorce under our statute; the three consecutive years must have been "next prior to the filing of the libel." R. L. c. 152, § 1. Here, the parties lived together as husband and wife in December of 1909, though only for four days; and so there was no desertion for the "three consecutive years next prior to the filing of the libel." For this reason, no cause of divorce was shown at the hearing, and the ruling made was correct. Gaillard v. Gaillard, 23 Miss. 152.

putting an end to the earlier desertion made it impossible to say that any desertion had continued for the statutory period up to the filing of this libel. It was an absolute rethe fact that it involved also a forgiveness moval of the existing cause of divorce, and. of the past wrong that had been done can

not diminish its full effect.

The cases of Danforth v. Danforth, 88 Me. 120, 33 Atl. 781, 31 L. R. A. 608, 51 Am. St. Rep. 380, and Kennedy v. Kennedy, 87 Ill. 250, turned on the fact that in them no complete renewal of matrimonial cohabitation was found. It is not necessary to consider whether, under the same facts, we should be inclined to follow those decisions. Woolfolk v. Woolfolk, 96 Ky. 657, 29 S. W. 742; Burk v. Burk, 21 W. Va. 445; Reed v. Reed, 62 Ark. 611, 37 S. W. 230; Holmes v. Holmes, 44 Mich. 555, 7 N. W. 228. Under the terms of the report, the libel must be dismissed. So ordered.

(210 Mass. 145.)

DAVIDSON v. STAFFORD.

See

(Supreme Judicial Court of Massachusetts. Worcester. Oct. 18, 1911.)

1. TAXATION (§ 722*)-TAX SALE-REDEMPTION-SUIT TO REDEEM.

Where a nonresident purchaser of town property at a tax sale did not appoint an agent residing in the town or any agent in the place where the deed was recorded, and did not file with the town treasurer nor with the register of deeds a statement of his residence and place of business, nor of the name, residence, and place of business of any agent, as required by Rev. Laws, c. 13, § 45, such failure, though not sufficient to invalidate the sale, was nevertheless ground to move a court of equity to inquire whether under the circumstances good conscience did not require that the after the two years limited by St. 1909, c. 490, owner be given an opportunity to redeem even pt. 2, § 59, if the suit be brought within the six years limited by section 76, and it was therefore error to hold that the owner could

not redeem as matter of law.

[Ed. Note. For other cases, see Taxation, Dec. Dig. § 722.*]

2. TAXATION (§ 722*)-TAX SALE-REDEMPTION-REMEDY.

It cannot be said that the husband's conduct in resuming matrimonial relations with his wife was merely a condonation or conditional forgiveness of her prior misconduct; and that her subsequent refusal to accompany or follow him to his home in Canada was the beginning of a new desertion by her (Franklin v. Franklin, 190 Mass. 349, 77 N. Appeal from Superior Court, Worcester E. 48, 4 L. R. A. [N. S.] 145), which avoided County; Loranus E. Hitchcock, Judge.

Remedy for redemption from tax sale by paying money necessary to redeem to the town or city treasurer in case the owner is unable to find the purchaser or his agent after reasonable search authorized by St. 1848, c. 166, §§ 2, §§ 61, 62), was cumulative only, and not ex6, 7, extended and enlarged (St. 1909, c. 490, pt. clusive of others.

[Ed. Note. For other cases, see Taxation, Dec. Dig. § 722.*]

Suit by Willis W. Davidson against Albert W. Stafford to redeem real property from tax sale. Decree for defendant, and plaintiff appeals. Reversed.

Henry H. Lepper, for plaintiff. John den Thayer, Chas. B. Perry, and Paul Howard for defendant.

ant that if Adams, the purchaser at the tax sale, had complied with the provisions of R. L. c. 13, § 45 (now St. 1909, c. 490, pt. 2, § 46) (in substance set out above), as to filAl-ing in public records identifying information D. respecting himself or his agent, and requiring the appointment of a local agent by a non-resident purchaser, and if he had not

RUGG, C. J. [1] This is a suit in equity to redeem from a tax sale. The judge of the superior court filed a memorandum of facts, ⚫ which so far as material are that the plaintiff is owner of land in Oxford subject to rights acquired under a tax deed given by the collector of taxes of the town of Oxford on October 29, 1907, to one Adams. Adams, not being a resident of Oxford, did not appoint an agent residing in Oxford, nor any agent in the place where the deed was recorded, and did not file with the treasurer of the town of Oxford, nor with the register of deeds a statement of his residence and place of business nor of the name, residence and place of business of any agent, all as required by R. L. c. 13, § 45 [now St. 1909, c. 490, pt. 2, § 46].1 The plaintiff first learned of the tax sale in the summer or early fall of 1909. Immediately he tried to find Adams, but did not succeed in meeting him until October 17, 1909. Adams then stated orally the amounts claimed by him to be due in order to redeem. which included items he was not authorized to charge. This was in violation of St. 1909, c. 490, pt. 2, § 60. Adams left Worcester, where he resided, on the following day, and the plaintiff, although making reasonable effort, could not pay or tender to him the amount required to redeem until after the expiration of two years from the tax sale. The plaintiff did not pay to the treasurer of the town of Oxford the amount which he would have been required to pay the purchaser as permitted by R. L. c. 13, § 60, as amended by St. 1902, § 443, now St. 1909, c. 490, pt. 2, § 61.

demanded more than his due in violation of St. 1909, c. 490, pt. 2, § 60, the plaintiff would have no standing in equity, and his rights to redeem would be barred by the two year period of limitation set forth in St. 1909, c. 490, pt. 2, § 59. The effect be tween the parties of failure on the part of the purchaser to comply with said section 45 has been adverted to, but left undecided in

McNeil v. O'Brien, 204 Mass. 594-597, 91 N. E. 138, and Conners v. Lowell, 209 Mass. 111-121, 95 N. E. 412. That point must now be decided.

This statute was enacted

first by St. 1882, c. 243, §§ 1 and 2, and has remained the same in substance in successive re-enactments. See St. 1888, c. 390,

R. L. c. 13, § 45, St. 1909, §§ 45 and 46. to c. 490, pt. 2, § 46. Its purpose seems have been to require such ease of access by a person entitled to redeem from a tax sale to the person from whom he has a right to redeem as to save him the annoyance and trouble of a protracted and uncertain search. It appears in part also to reflect a legislative distrust of the ingenuousness of purchasers at tax sales. [2] Its enactment was not essential to some measure of protection of the person entitled to redeem, for a law had been on the statute books since 1848 permitting him to pay the money necessary to redeem to the town or city treasurer, in case he was unable to find the purchaser or his agent after reasonable search. See St. 1848, c. 166, §§ 6, 7 and 8; Gen. St. c. 12, §§ 37 and 38. Pub. St. c. 12, §§ 50 and 51, St. 1888, c. 390, §§ 58, 59; R. L. c. 13, §§ 60 and 61. edy in this regard has been enlarged by St. 1902, c. 443, now St. 1909, c. 490, pt. 2, §§ 61 and 62. See Rogers v. Nichols, 186 Mass. 440, 71 N. E. 950. This remedy has been held repeatedly to be merely cumulative and Clark v. Lancy, not exclusive of others. 178 Mass. 460, 59 N. E. 1034; Barry v. Lancy, 179 Mass. 112, 60 N. E. 395; Perry v. Lancy, 179 Mass. 183, 60 N. E. 472; Rogers v. Nichols, 186 Mass. 440, 71 N. E. 950; Mc1 "Whoever has a title to land under a sale for Neil v. O'Brien, 204 Mass. 597, 91 N. E. 138. nonpayment of taxes or other assessment and is But there are limitations upon the effeca resident of the city or town in which such land lies, shall file with the treasurer of such city or tiveness of the remedy furnished by this stattown and in the registry of deeds, a statement of ute. Compliance with its terms would still his residence and place of business, with the street leave outstanding upon the record the tax and number, if any. Such person, who is not a resident of such city or town or who removes deed, although its effect would be neutraltherefrom, shall appoint an agent residing therein, ized by the certificate provided for in the or in the place where the tax deed is recorded, authorized to release such land. He shall also statute. This in the minds of those not file the statement above required in which he shall

Upon these facts the superior court ruled as matter of law, as we understand the memorandum, that the plaintiff was not entitled to redeem, and ordered the bill dismissed. The plaintiff's appeal presents for determination the correctness of this ruling. It may be assumed in favor of the defend

also state the name of such agent and his residence and place of business, with the street and number, if any. Whenever a person holding a tax title changes his residence or place of business or agent, he shall file a new certificate. Tender of payment to, and service of process upon, such agent shall be a sufficient tender to, or service upon, the

The rem

learned in real estate law might be a practical impairment of the ease of transferring title. The precise amount to which the purchaser may be entitled, would remain undetermined. As matter of precaution it might be consid

amount which it would seem the tax pur- | pose ought not to be frustrated. A plain chaser would demand rather than to take the risk of not paying enough. The Legislature has made an effort to avoid this danger of the attempt at redemption failing for this reason by the last sentence of said section 62. But even then an action at law might be required to determine finally the correct amount. If the purchaser has been in possession and has collected rents and profits or has been compelled to repair, these items of account cannot be determined with accuracy except by interview, conference or action in the courts. Hence it remains highly desirable that the person entitled to redeem should be able to find the purchaser, and get from him a correct statement of the amount required to be paid for redemption. A false statement in this respect, although only made a crime so far as the express letter of the statute goes (St. 1909, c. 490, pt. 2, § 60) may have important effects upon the civil rights of the interested parties who were intended to be directly benefited by its terms. Bourne v. Whitman, 209 Mass. 155, 169, 95 N. E. 404; Berdos v. Tremont & Suf

way is open for an effective construction of its terms, and affording a substantial relief under it. These considerations lead to the conclusion that it was the intent of the Legislature, in enacting said section 45, to accomplish something more than a mere direction, whose terms could be violated with impunity by the purchaser. This section and said section 60 impose positive duties upon the purchaser, violation of which is or may be found to be a limitation upon his title against the owner, at least to the extent of enabling a court of equity to inquire whether the circumstances are such that good conscience requires an opportunity to be given to redeem, even after the expiration of two years, if suit is brought within the six years limited in St. 1909, c. 490, pt. 2, § 76. See Widersum v. Bender, 172 Mass. 436, 52 N. E. 717. Although the plaintiff would have been barred by the two-year statute of limitations contained in section 59 of the present tax law, if the purchaser had complied with the provisions of said section 45 intended to make plain to the owner the way must be made, and had not attempted to colto find the one from whom the redemption lect more than the sum of money authorized to the terms of said section 60, the violaby law as a condition of redemption contrary tion of these statutory obligations by the

folk Mills, 95 N. E. 876. The amounts involved in tax sales, although oftentimes relatively small, may bear with hardship upon those whose property is involved, and who not infrequently are poor or in straitened financial condition. The interpretation of statutes, designed to afford a way for people of this sort to redeem their property from a purchaser opens the door for an inquiry inpurchaser at a tax sale and therefore highly below was not warranted in ruling as matto the whole situation in equity. The court remedial in their nature, ought to be as lib-ter of law that the plaintiff could not reeral as the end in view permits with a just regard to the rights of honest and fair dealing purchasers.

It does not appear as matter of law that any injustice will be wrought to the purchaser by holding the landowner entitled to bring a petition under these circumstances. He has failed in two particulars to comply with provisions of the tax law for the benefit of the landowner. One of these failures is matter of public record, so that everybody dealing with the title is charged with notice of it. There are no equities in his favor which prevent a full inquiry into the facts by a chancery court. It has been held that violation of said section 45 does not invalidate the sale. Conners v. Lowell, 209 Mass. 111, 121, 95 N. E. 412. Unless a positive effect is given to the section by enabling the landowner to obtain equitable relief against a purchaser who has violated its terms, it will become for all practical purposes a dead letter. But such a result cannot be attributed to legislation of this character, unless no other is reasonably possible. It is a remedial statute. Its evident aim was to aid the landowner in redeeming without annoyance and settling once for all every question arising out of the sale. Its pur

deem, but should have considered whether all the circumstances were such as to make it equitable that the plaintiff should be entitled to redeem.

There are many cases which hold that acts to be performed by the purchaser after the sale are in the nature of conditions subsequent, and must be strictly performed in order to perfect the title. See 2 Cooley on Taxation (3d Ed.) p. 1034 et seq. and cases cited; 1 Blackwell on Tax Titles (5th Ed.) 570. These have arisen under statutes differing in material respects from ours, and it is not necessary to examine them in detail. The statute under consideration does not go so far as to hold a sale invalid because of failure to comply with its terms. Conners v. Lowell, 209 Mass. 111, 121, 95 N. E. 412. The rights of the landowner are amply protected by construing our statutes as enabling him to redeem in equity in proper

cases.

The fact that the plaintiff was not the record owner of the real estate at the time of the sale does not prevent him from maintaining this suit. Rogers v. Lynn, 200 Mass. 354, 86 N. E. 889.

Decree reversed.

The $100 appears by the written agreement to have been paid for the plan, and the court under the ruling above named must have found that the cash subsequently paid to the amount of $900 was not in excess of 85 per cent. of the amount due, and hence was not paid in violation of the 15 per cent. clause of the bond. This finding is supported by the evidence. There appears no error in the manner in which the court dealt with the defendant's requests. Exceptions overruled.

(210 Mass. 177.)

trusted with superintendence as his sole or principal duty, and that not only in cleaning the gears did the plaintiff follow the instructions given to him, but if Hutchins who stood by while the work was being done, had not started the machine without giving the plaintiff any warning, the accident would not have happened. Griffin v. Joseph Ross Corporation, 201 Mass. 477, 90 N. E. 926; Carney v. A. B. Clark Co., 207 Mass. 200, 206, 207, 93 N. E. 647. [1] The defendant's first contention is, that because the plaintiff put his thumb on the gears instead of using the brush he was careless. But the plaintiff knew that the machine had been stopped at the usual time for him to clean, and had the right to expect that it would not be started until the process had been finished. Moreover the personal supervision of the superintendent, accompanied by his directions to the plaintiff while performing the work, was an assurance that the machine would remain at rest until the gears had been cleaned, or that he would be warned before it was deliberately set in motion. The question of the plaintiff's due care was for the [Ed. Note.-For other cases, see Master and jury. Meagher v. Crawford Laundry MaServant, Cent. Dig. §§ 1089-1132; Dec. Dig. §chinery Co., 187 Mass. 586, 588, 73 N. E. 853; 289.*]

KUSHNIZKI v. NEW ENGLAND BISCUIT
CO.

(Supreme Judicial Court of Massachusetts.

Worcester. Oct. 17, 1911.)

1. Master and Servant (§ 289*)-CONTRIBU

TORY NEGLIGENCE QUESTION FOR JURY.

A servant cleaning a machine at rest, under the personal supervision of the superintendent, may assume that the machine will remain at rest until the work is done, or that he will be warned before it is set in motion; and the question of his due care in putting his thumb on the gears, instead of using the brush, was for the jury.

2. MASTER AND SERVANT (§ 190*)- FELLOW SERVANT-ACTS OF SUPERINTENDENCE.

The aot of one intrusted with superintendence as his principal duty in starting a machine which had been stopped at the usual time for a servant to clean is not the act of a fellow servant, but his decision to start the machine is within the scope of his authority, and the master is liable for his negligence causing injury to the servant.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 449-474; Dec. Dig. 8 190.*]

Jellow v. Fore River Ship Building Co., 201
Mass. 464, 87 N. E. 906; Griffin v. Joseph
Ross Corporation, 204 Mass. 477, 481, 90 N.
E. 926.

[2] It is next urged that the act of Hutchins in starting the machine was the act of a fellow servant and not an act of superintendance.

But his decision to put the machine in motion was within the scope of his authority, and caused the injury. O'Brien v. Look, 171 Mass. 36, 50 N. E. 458; Roche v. Lowell Bleachery, 181 Mass. 480, 63 N. E.

Exceptions from Superior Court, Worcester 943; Meagher v. Crawford Laundry MachinCounty; John A. Aiken, Judge.

Action by Peter Kushniski against the New England Biscuit Company for personal injuries sustained while in defendant's employ. There was a verdict for plaintiff, and defendant brings exceptions. Overruled.

Peter T. Dolan, for plaintiff. Parker & Milton, Chas. C. Milton, and Frank L. Riley, for defendant.

ery Co., 187 Mass. 586, 73 N. E. 853; McPhee v. New England Structural Co., 188 Mass. 141, 74 N. E. 303. The exception to the exclusion of evidence has been waived; and as the first, second, sixth and seventh requests upon which the defendant relied at the argument were rightly refused for the reasons stated, its exceptions must be overruled.

So ordered.

(210 Mass. 164.)

SAVAGEAU v. BOSTON & M. R. R. (Supreme Judicial Court of Massachusetts. Worcester. Oct. 17, 1911.)

BRALEY, J. The plaintiff among other duties of his employment was required to clean the dies and cutters of a "cookie machine," and while about the work it was set in motion, cutting off the thumb of his right hand. It was in evidence that the machine when in operation did not become clogged, and the plaintiff had been instructed to clean only when it had been stopped for the purpose just before the close of the day's work. The evidence would have warranted Where there was evidence only that a train the jury in finding that one Hutchins, whose came in fast at a station where plaintiff, with other passengers, was waiting on the station orders to clean the machine where he was platform for its arrival, no inference could be injured the plaintiff obeyed, had been in-drawn that the engineer was negligently run

1.

CARRIERS (§ 316*) - PERSONAL_INJURY. RATE OF SPEED - DUTY AS TO PASSENGER WAITING AT STATION.