#### Eliphalet J. Foss *vs.*Zaccheus R. Atkins & others.

Barnstable.

December 7, 1909.

January 7, 1910.

Present: Knowlton, C. J., Morton, Braley, Sheldon, & Rtjgg, JJ.

*Land Court,*Jurisdiction, Amendment of petition, Decree, Withdrawal of petition.

The Land Court in the matter of a petition for the registration of the title to certain land has no power to allow a motion of the respondent to amend the petition by substituting his name as the petitioner for the registration of the title to a part of the land described in the original petition ; an'd therefore a decree, which was entered as to such part of the land described in the original petition after the allowance of such an amendment, no decree being entered as to the remaining land, and which declared the respondent to be the owner of such land, was wholly beyond the jurisdiction of the court and is void.

After the trial upon a petition for the registration of the title to certain land, the judge of the Land Court filed a decision that the petitioner had title to a part of the land described in the petition and the respondent to the rest and thereupon on motion of the respondent substituted him for the petitioner as to that part of the land described in the original petition which he found to be the respondent’s, and made a decree which, without dealing at all with the land which he had found to be the petitioner’s, declared the respondent to be the owner of the land described in the amendment and ordered that his title thereto be registered. Thereafter the petitioner under R. L. c. 128, § 36, filed a motion to withdraw his application for registration upon such terms as the court might fix, which motion the judge disallowed with the indorsement, “ a final decree having been entered” ; and the petitioner alleged exceptions. *Held,*that no final decree had been entered, the decree that had been entered being void; and therefore that the petitioner’s motion should have been allowed.

The denial of a motion of one, who has petitioned in the Land Court for the registration of his title to certain land, that his petition be dismissed so far as it applies to a part of the land described in the petition to which the judge has found that he had no title, is within the discretion of the judge, although the petitioner would have a right to have his petition dismissed as to the whole tract upon terms.

*It seems*that when one, who has applied in the Land Court for the registration of his title to certain land, files, after the court has found that he has not a title proper for registration, a motion that his application be dismissed without prejudice, such motion should be passed upon and disposed of before any further action is taken respecting the application.

RüGG-, J.

The petitioner duly filed * a petition for registration of the title to a certain tract of land in Provincetown. The judge of the Land Court on February 16, 1906, filed a decision in which he found that the petitioner had title to a part of the *338land, and the respondents to the rest. An appeal from this decision to the Superior Court was dismissed because the issues were not properly framed. 193 Mass. 486. On January 21, 1907, the petitioner filed a motion to dismiss his petition without prejudice, apparently under the first sentence of § 36 of R. L. c. 128. This motion, although set down for a hearing, was continued generally at the petitioner’s request, and never has been acted on. Notwithstanding its pendency, the Land Court allowed the respondents’ motion * for substituting themselves as petitioners for registration as to so much of the land as was by the decision of February 16, 1906, found to belong to them, and a decree, declaring them to be owners of this part and that their title thereto be registered, was entered on March 11, 1907. Appeal from this action to the Superior Court was held not well taken and exceptions saved during trial there were overruled in 201 Mass. 158. The rescript of that decision was on February 25, 1909. On March 16,1909, a memorandum of disposal and certified copy of decree were sent by the Land Court to the assistant recorder at Barnstable, who on March 17,1909, transcribed it in the registration book, and issued duplicate certificate to the respondents as owners as required in R. L. c. 128, § 40. On Maich 22,1909, the petitioner filed a motion to withdraw his application for registration upon such terms as the court might fix, under the second sentence of § 36 of R. L. c. 128. This was by the Land Court disallowed with the indorsement, “ a final decree having been entered.” The petitioner excepted. The only decree, which has been entered in the Land Court, is the one registering in the respondents the title to the portion of the tract described in the petition, which was found by the decision of the judge of the Land Court to belong to them. There has been no decree respecting the title to the land found by that decision to belong to the petitioner. That subject matter appears to be still pending before the Land Court. The only ground upon which it can be claimed that a final decree had been entered in the Land Court is that the respondénts’ motion for substitution, which was in form a motion to amend the petition by substi*339tuting their own names “ as the persons in whose names a portion of the land described in said petition is to be registered ” furnishes a proper basis for such a decree. It was said by way of precaution and *dictum*in 201 Mass. 158, at 162, 163, because the question was not then before the court, that such an amendment and substitution was beyond the authority of the Land Court. The point is now raised whether a decree having no other support than such an amendment is valid. What was said in that case is made the ground of this decision. There is no principle of “ procedure or practice either in personal actions or in proceedings *in rem*nor . . . any provision in R. L. c. 128, which authorizes the Land Court to allow an amendment by which the respondent becomes the petitioner and the petitioner the respondent. If the ” respondents “ had wished to become ” petitioners they “should have brought” their “own petition.” The only decree, therefore, which has been entered is one based wholly upon a pleading which not merely ought not to have been allowed, but which brought before the court a subject which could not under the law come before it in that proceeding. It was not an incidental or collateral error in the progress of a cause, which must be seasonably objected to in order to be corrected. It was a fundamental procedure introducing an issue calling for action affirmative in its nature alien to and incompatible with the pending petition. It brought in a subject beyond the jurisdiction of the Land Court under any petition before it. This is not a decree combining matters partly within the scope of the original petition and partly upon an amendment which the court had no right to allow', but it is one having no relation to any other subject than the extrajurisdictional one. A decree thus wholly beyond the jurisdiction of the court is void, and may be so treated by any party to the proceeding. It follows that the withdrawal of the petition by the petitioner was seasonably filed, and should have been allowed. *McQuesten*v. *Commonwealth,*198 Mass. 172. Although it was pointed out in 201 Mass, at page 161 that the simple and complete remedy of the petitioner was by appeal directly from the Land Court to this court, it was nevertheless possible to raise7 the question of law by the more cumbersome method of exception. R. L. c. 128, § 13; c. 173, § 106. *McCusker*v. *Geiger,*195 Mass. 46.

*340*P. M.*Foss, for the petitioner.

*G. A. King,*for the respondents, submitted a brief.

The petition filed on November 16, 1909, by which the petitioner asked that his petition be dismissed so far as it applied to land to which the court found that the petitioner had no title, may properly have been denied within the discretion of the court. The right to have the petition dismissed is one which can be asked for as of right by the petitioner only when it relates to the entire tract described in the petition.

It may be noted that the motion for dismissal of the petition as a whole filed on January 21, 1907, should have been passed upon and disposed of before any further action was taken respecting the petition.

*Exceptions sustained.*

*

 On April 27, 1904.

*

 This motion was filed on November 20, 1905,' and allowed on February 7. 1907.