Fitzpatrick v. Fitzgerald
Massachusetts Supreme Judicial Court
Action of tort for breaking and entering the plaintiff’s close in Deerfield, and treading down the grass, and pulling up and carrying away and converting to the defendant’s use certain stakes set in the soil.
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Action of tort for breaking and entering the plaintiff’s close in Deerfield, and treading down the grass, and pulling up and carrying away and converting to the defendant’s use certain stakes set in the soil. The answer denied that the close was the property of the plaintiff; and alleged that it was purchased and paid for by the defendant and others for the purpose of a free Roman Catholic cemetery, and was conveyed to the plaintiff, to be held by him in trust for the Roman Catholic community, for the purposes of a free burial ground; that after the conveyance of the close to the plaintiff,…
1Opinion of the CourtMetcalf, J.
The St. of 1855, c. 314, § 1, cannot be applied to the deed which conveyed the locus in quo to the plaintiff That conveyance is to him, and his heirs and assigns forever, and not to him “ and his successors in any ecclesiastical office.” He therefore took an estate in fee simple. And though he holds “ in trust for the catholic community, for the purpose of a free burial ground,” yet, as he is seised and holds in fee, he can maintain an action at law for any injury to the estate. Even when the cestuis que trust are individuals named, the trustee may maintain a writ of entry, ejectment or…
2Cases cited2 opinions
- Moore v. SpellmanNew York Supreme Court · 1848
- Beach v. BeachSupreme Court of Vermont · 1842