Opinion
Decided December 1, 1914.
PETITION, for an injunction restraining the defendant from interfering with real estate alleged to be charged with the debts of the plaintiff's intestate, and for instructions as to whether the debts might be considered a charge upon the real estate if the intestate intended to make them so. Upon a trial of the facts it was found that there was no evidence that the intestate had such an intention, and the petition was dismissed subject to exception. The plaintiff also excepted to the refusal to grant him an ex parte hearing. Transferred from the April term, 1914, of the superior court by Sawyer, J.
Horace J. Holden, for the plaintiff.
Thomas F. Johnson and Drew, Shurtleff, Morris Oakes, for the defendant.
This proceeding involves the same property the title to which was in litigation between the same parties in Day v. Roby, ante, 144. The administrator of Volney Day's estate now seeks to prevent Mrs. Roby from disposing of the property, upon the ground that it is charged with the payment of Volney's debts. As the plaintiff failed to prove the allegation upon which his claim depended, his petition was rightly dismissed. No brief has been filed in support of the plaintiff's exceptions, and no error has been found in the rulings of the superior court. The claim that it was the plaintiff's right to have the defendant's rights curtailed without opportunity to make objection on her part is not entitled to serious consideration.
Exceptions overruled.
All concurred.