
    Zachariah F. Silsbee & others vs. City of Salem.
    On a petition under the Gen. Sts. c. 134, §§ 49, 50, to quiet the title to land, the respondents answered, claiming title, and a decree was made for them to bring an action in the superior court “ to try their title ” to the premises, “ and that the same be duly prosecuted to final judgment.” They thereupon brought such an action; but, when it came on ftr trial, they produced no evidence, the superior court ordered a nonsuit, and they alleged no exceptions. Held, that the respondents had disobeyed the lawful order of the court, and the petitioners were entitled to a further decree that the respondents “be forever debarred and estopped from having or claiming any right or title, adverse to the petitioners,” in the land.
    Petition filed December &, 1866, under the Gen. Sts. c. 134, §§ 49, 50, §to quiet the title to a parcel of land on Forrester Street in Salem, of which the petitioners alleged that they were in possession and were seised in fee simple. The answer denied their seisin and possession; and alleged that on the contrary the respondents were seised and possessed of the land.
    On a hearing at April term 1868, a decree was made, that, “ it appearing to the court that the petitioners were, at the time of the commencement of said petition, in possession of the premises described in said petition, claiming an estate of freehold therein, and that the respondents claim a title therein adverse to said title of said petitioners, it is ordered and decreed by the court, that said respondents be and they are hereby required to bring an action to try their title to said described premises; and it is ordered that in said action the said respondents shall count upon their own seisin of said premises and shall allege a disseisin by said petitioners ; and that said action be brought by writ returnable to the superior court for the county of Essex, and be commenced before the first day of August next; and that the same be duly prosecuted to final judgmentand for the continuance of the petition meanwhile.
    On a further hearing at April term 1869, it appeared that “ prior to August 1, 1868, a writ of entry in common form was brought by the respondents against the petitioners, to recover the land in question, returnable at the next (September) term of the superior court, and, at the March term of said court, the case coming on for trial, and no evidence being produced by the plaintiff, the court ordered a nonsuit.” The petitioners thereupon moved for a further decree “ that the respondents be forever debarred and estopped from having or claiming any right or title adverse to the petitioners, to the said premises; ” and Colt, J., reserved for the determination of the full court the question whether this motion should be granted.
    
      S. B. Ives, Ir., for the petitioners.
    
      J. A. Gillis, for the respondents.
    1. Admitting that the court had power to pass the original decree, the statute does not provide for the case which has arisen. Gen. Sts. c. 134, §§ 49, 50. The respondents appeared, claimed title, and subsequently brought action and tried the title so far as they were able to do so when the case was reached. It does not appear that they “ disobeyed ” the order of the court, and it is only in the case of such disobedience that a decree can be made estopping them from further claim. It is no answer to say that the petitioners’ title is not quieted. That fact will not cure a defect in the statute.
    
      2. But such a decree as is asked for can only be made in case a “lawful” order of the court is disobeyed; and the original decree was not such a lawful order. The respondents, being required to bring a writ of entry, are obliged to admit that they are disseised and out of possession, whereby they might be greatly prejudiced, and perhaps obliged to give up their whole case in advance, as for instance in a case where neither party might have any other title than possession. Gen. Sts. c. 134, § 2. It is not enough that the question of possession has been passed upon by a justice of this court. The respondents have a right to submit this question to a jury.
    
      
       § 49. “ Any person in possession of real property, claiming an estate of freehold or an unexpired term of not less than ten years, may file a petition in the supreme judicial court setting forth his estate, whether of inheritance, for life, or years, describing the premises, averring that he is credibly informed and believes that the respondent makes some claim adverse to the estate of the petitioner, and praying that he may be summoned to show cause why he should not bring an action to try the alleged title. Thereupon the court shall order notice to be given to the respondent; and, upon return of the order of notice, duly executed, if the respondent so summoned makes default, or, having appeared, disobeys the lawful order of the court to bring an action and try the title, the court shall enter a decree, that he be forever debarred and estopped from having or claiming any right or title adverse to the petitioner, to the premises described. If the petitioner prefers, such a petition may be inserted like a declaration in a writ, and served by copy like a writ of original summons.”
      § 50. “ If the respondent appears and disclaims all right and title adverse to the petitioner, he shall recover his costs. If he claims title, he shall by answer show cause why he should not be required to bring an action and try such title; and the court shall make such decree respecting the bringing and prosecuting of such action as may seem equitable and just.”
    
   Chapman, C. J.

The respondents have obeyed the order of the court so far as to bring an action; but they have not proceeded to try the title. The case came on for trial, and, as they produced no evidence, the court ordered a nonsuit. According to our practice, such an order against a party in court was irregular ; but, as no exception was taken, the respondents must be regarded as having assented to it. Motion granted.  