Blake v. Sawin

92 Mass. 340 | Mass. | 1865

Chapman, J.

1. The tenant contends that assignees in insolvency cannot maintain a real action against one whom they aver to be the wife of their insolvent, without also averring her statute qualifications to hold real property. It is not denied that she may hold such property, and sue and be sued in respect to it according to the provisions of Gen. Sts. c. 108, §§ 1, 3. But we see no necessity for such an averment as is suggested. The ordinary form of a count in a writ of entry is adapted to the case, and there is no rule of pleading or statute provision that renders any special averments necessary.

2. After the tenant had admitted the execution of the deed from Poole to Sawin, it was not necessary for the demandants to offer proof of its execution. The effect of an admission is to avoid the necessity of proving the fact admitted; and the fact that the admission was made to prevent the demandants from obtaining a postponement of the case does not alter its effect in this respect.

3. There was no variance between the declaration and the evidence. The deeds were offered for the purpose of proving that the tenant had a title to the land by a voluntary conveyance which was not valid as against the demandants, though it might be valid as between the parties. It was pertinent evidence.

4. It was within the discretion of the presiding judge to allow the demandants to put in the deed of assignment to them after the tenant’s defence was opened, and no exception lies to such a decision. As a matter of practice, this is too well settled to require the citation of authorities.

5. The evidence tending to show that Sawin concealed his property for the purpose of defrauding his creditors was competent, and it was not necessary to prove his actual inability to pay his debts. Bartholomew v. McKinstry, 6 Allen, 567.

6. The ruling as to the alleged illegality of the consideration of Sawin’s notes was not material. The only facts on the subject which appear in the report are, that Sawin’s business was the sale of intoxicating liquors at retail, and that the notes which he owed were all given for the purchase of the liquors which he thus sold, and for no other consideration. This alone does not make the consideration illegal.

7. It was not necessary for the court to make a formal ruling that the rights of the parties were to be determined upon strict principles of law. The ruling actually made was more pertinent to the case, and instructed the jury sufficiently.

8. The instructions as to what would constitute insolvency were correct and full.

Exceptions overruled.