350 Mass. 775

March 31, 1966

The plaintiff mortgagee prevailed in the District Court, and, on appeal by the defendant mortgagors, in the Superior Court, in summary process to obtain possession of the premises purchased by the plaintiff at a foreclosure sale. All of the defendants' exceptions concern the judge's rulings that the issue of the plaintiff's want of good faith when it took title at the foreclosure sale is not relevant in summary process. The judge was right. The purpose of summary process is to enable the holder of the legal title to gain possession of premises wrongfully withheld. Right to possession must be shown and legal title may be put in issue. Sheehan Constr. Co. v. Dudley, 299 Mass. 51, 53. Legal title is established in summary process by proof that the title was acquired strictly according to the power of sale provided in the mortgage; and that alone is subject to challenge. If there are other grounds to set aside the foreclosure the defendants must seek affirmative relief in equity. New England Mut. life Ins. Co. v. Wing, 191 Mass. 192, 195, 196. The rule applies here. The issue of lack of good faith is not available to a defendant in summary process.

Exceptions overruled.


[Note 1] Murry Abbott.


350 Mass. 775

March 31, 1966

This is an appeal by a husband from a decree of the Probate Court, Middlesex County, awarding alimony. The judge made a report of the material facts found by him. The evidence designated for the record on appeal is reported. See Rule 2 of the Rules for the Regulation of Practice before the Full Court (1952), 328 Mass. 693 . The husband questions the amount of the award. He also argues that not all the evidence offered at the hearing is contained in the record. The latter contention is frivolous. See Cohen v. Santoianni, 330 Mass. 187, 189-190. Nothing would be added to our jurisprudence by detailed discussion of the assertions in the appellant's brief. The reported evidence amply warranted the award made by the decree. The contents of the appellant's Federal income tax returns for the years 1960 to 1963, inclusive, which were the subject of testimony, alone would support the judge or ourselves in finding facts justifying the amount of the award. The decree is affirmed. Costs of appeal, including counsel fees, are to be in the discretion of the Probate Court.

So ordered.


350 Mass. 775

April 1, 1966

This is an appeal from a final decree dismissing the bill of Fine and Nantucket Express Lines, Inc. (Lines) seeking declaratory relief and to enjoin the Authority (St. 1960, c. 701), Massachusetts Bay Transportation Authority, and the State Commissioner of Administration from taking action in respect of a plan for acquiring and financing hydrofoil vessels to operate between Falmouth and the islands of Martha's Vineyard and Nantucket. Fine has shown no more than that she, an inhabitant of Massachusetts, is

Page 776

an owner of taxable property in Falmouth. She thus has established no interest apart from that of the public generally and has no standing to maintain this bill. See Butler v. Selectmen of Wakefield, 269 Mass. 585, 587; Cabot v. Assessors of Boston, 335 Mass. 53, 57; Spear v. Boston, 345 Mass. 744, 747. Cf. Woods V. Newton, 349 Mass. 373, 378-380. Lines shows and offers to show that it operates (sometimes as part of an interstate trip) a boat, the "Martha's Vineyard" under license from, and by arrangement with, the Authority and that the hydrofoils may compete with it. Apart from the license, Lines could not operate the "Martha's Vineyard" (see St. 1960, c. 701, Section 5) and may not now question the validity of (a) the license which it accepted and to which it agreed, or (b) the statute which authorized the license, thus affording to Lines various benefits. See Brown v. Nahant, 213 Mass. 271, 275-276; Commissioner of Banks v. Prudential Trust Co. 242 Mass. 78, 88. See also Opinion of the Justices, 251 Mass. 569, 612; Kaplan v. Bowker, 333 Mass. 455, 459-460. Lines, in any event, has not shown or offered to prove that the license or the statute caused Lines any harm of a type for which judicial relief may be granted in this proceeding. In the circumstances, Lines, of course, has no standing to object merely because it will be subjected to competition. Nantucket Boat Inc. v. Woods Hole, Martha's Vineyard & Nantucket S.S. Authy. 345 Mass. 551, 553-554. Compare cases cited in the Nantucket Boat Inc. case where competitors may have special standing.

Final decree affirmed with costs of appeal to the defendants.