184 Mass. 545 | Mass. | 1904
At the time when the alleged false representations were made by the defendant the title to the property was in Roy E. Brock, a minor son of the plaintiff and of whose person and estate she was'the duly appointed guardian; and all the proceedings in conducting and making the sale, and conveying the land to the defendant, were undertaken and completed by her as such guardian under a license from the Probate Court authorizing the sale of the ward’s estate; and in which she had no legal interest. Chapin v. Livermore, 13 Gray, 561, 562. Rollins v. Marsh, 128 Mass. 116, 118. McKim v. Mann, 141 Mass. 507, 508. Lombard v. Morse, 155 Mass. 136, 137.
In order to maintain an action for deceit the plaintiff must not only allege and prove the falsehood and fraud, but also that thereby she has suffered damage. Tryon v. Whitmarsh, 1 Met. 1, 6.
If the defendant made the representations as alleged in the declaration, in which the case is put on the sole ground that it was the plaintiff’s property which was obtained by the fraud of the defendant, the plaintiff wholly fails to prove that by reason of the representations, she had been induced to part with any property belonging to her, and she has no cause of action.
It appears that since this action was brought her son has died, and that she is his only heir at law. But this event cannot operate retroactively to vest her with a title to the real estate as of the date of sale. She takes as his heir at law, and becomes such only on his death.
Upon the death of the ward the authority of the guardian ceases and the only duty that remains is to settle his accounts and turn over any property in his possession to the rightful heir. Richmond v. Adams National Bank, 152 Mass. 359, 364. Besides the defendant bought from the plaintiff as guardian and the grantee in the deed took the title of her ward to the land, and she is now estopped to set up in her own right in this action an adverse claim of title in herself, for the purpose of laying a foundation upon which to rest an action of tort for the defendant’s alleged deceit at the sale. Heard v. Hall, 16 Pick. 457, 461.
The ruling at the trial that the present action could not be maintained by this plaintiff in her own name was right.
Exceptions overruled.
