186 Mass. 430 | Mass. | 1904
[After the above statement of the case.] The first objection argued by the defendant is that although a conveyance which is absolute in form can be shown to have been given as security for a debt due to the grantee, it cannot be shown to have been intended as security for a debt due to a third person. The ground on which the grantor of an absolute
Her next contention is that inasmuch as the defendant in her individual capacity contended that these deeds were her separate property, no bill which in effect is a bill to redeem them can be maintained until it is ascertained that they belong to the estate and not to her individually; that the issue whether these deeds were her separate property or are assets of her father’s estate is an issue within the exclusive jurisdiction of the Probate Court, and until it has been disposed of there, and a conveyance has been made by the defendant individually to herself as administratrix, the bill cannot be maintained. This bill is brought by the plaintiff as a debtor of the estate of Edward Clark. Had such a bill been brought by a stranger to the estate who had mortgaged his property to a third person to secure a debt due to the estate, it is plain that there would be nothing in this contention. A stranger could allege in his bill that the absolute conveyance was in fact given as security, and that for the purpose o'f proving that issue he has joined the grantee named in the deed. He also could allege that the debt for which it was given as security was a debt due to the estate and not due to the grantee. If the administrator disclaimed such a debt being due to the estate, that would relieve the plaintiff. If the administrator claimed the debt, the plaintiff could redeem on paying it. In the case at bar, the plaintiff having made the administratrix a party defendant in her individual capacity can try the question whether the conveyances were in fact intended as collateral security or were made for her separate benefit, and, having made her a party defendant in her representative capacity as administratrix, he can try the question of the amount due and obtain a decree allowing him to redeem. The fact that one of the things
The next contention argued is that the allegations of the bill originally were made with respect to the defendant in her official capacity, and were not repeated as to the defendant individually when, by an amendment to the bill, she was joined as a party defendant in that capacity. This contention is made principally in support of the fifth exception. That is an exception to the refusal of the master to find that the bill cannot be maintained because the prayer is for an accounting and it is not apparent from the bill whether the plaintiff seeks an accounting from the defendant in her individual or her representative capacity. The only question before the master was whether evidence on these allegations was admissible. It is plain that it was. It is the duty of the master to find the facts. The master is not required to pass on the question whether on those facts the plaintiff is entitled to a decree, much less to what decree he is entitled.
The next question argued by the defendant is the ruling as to an accounting. It will be more convenient to discuss this after disposing of the defendant’s next contention, to wit, that inasmuch as it is not pretended .that the plaintiff has a license to sell the real estate of his intestate Edward Payson Clark, the grantor in the conveyances in question, the bill cannot be maintained.
The exception of the defendant and the argument made in support of it seem to overlook the fact that one of the three conveyances is an assignment of “ all his [the son’s] right, title and interest in and to any personal property or estate of any and every name and nature to which he might be entitled as one of the heirs of ” the father. To that extent the exception
The question is here presented whether a bill to redeem land from a deed which is absolute on its face but in fact was given as security, can be maintained after -the death of the grantor by the administrator of his estate.
It is not pretended that at common law an administrator can bring a bill to redeem real estate which was conveyed in mortgage by the intestate. The equity of redemption is now an estate in land recognized at law as well as in equity, and an estate which descends to the heir. The right to redeem is at common law in the heir. The commissioners who were appointed to revise the statutes before the Revised Statutes of 1836 were enacted, reported two sections changing the law in this respect. Commissioners’ Report, Rev. Sts. c. 107, §§ 27, 28. Their reasons for the change are stated in the note to these sections to be : “ The right to make the tender, and to commence and prosecute the suit, is proposed to be given to the executors or administrators, as well as to the heirs or devisees. It may be sometimes convenient that an executor or administrator should redeem, for the benefit of minor heirs, widows, or others who cannot act for themselves ; and if the land will probably be wanted to pay the debts of the deceased, there may be no one interested to redeem, unless it is the executor or administrator for the benefit of the creditors.” The sections thus proposed became Rev. Sts. c. 107, §§ 30, 31, and were, re-enacted in Gen. Sts. c. 140, §§ 32, 33; Pub. Sts. c. 181, §§ 39, 40; and R. L. c. 187, § 33.
The provisions of R. L. c. 187, § 33, are that “ if the owner of an equity of redemption dies,” the administrator may redeem. The grantor of an estate by an absolute deed in fact given as security is not perhaps “ the owner of an equity of redemption ” in the strict technical sense of the word. Technically speaking, it cannot be said that in case of such a deed any estate is left in the grantor, ahd the words of the statute imply that the person whose administrator is entitled to redeem under the statute must have an estate. The language of the original act, however, is:
There remains the question whether at common law the right to redeem on the doctrine of Campbell v. Dearborn survives or whether that case comes within Leggate v. Moulton, 115 Mass. 552, and In re Duncan, [1899] 1 Ch. 387. We are of opinion that this right of action survives on the ground that the defendant has property in his hands as distinguished from a liability to respond in damages; and for that reason the case comes within Phillips v. Homfray, 24 Ch. D. 439, cited with approval in Warren v. Para Rubber Shoe Co. 166 Mass. 97, 104, and in Houghton v. Butler, 166 Mass. 547, 548, (see also Finlay v. Chirney, 20 Q. B. D. 494,) and not within Leggate v. Moulton, 115 Mass. 552, and In re Duncan, [1899] 1 Ch. 387. And also that this right of action survives to the heir, (see in this connection Jones v. Simes, 43 Ch. D. 607,) and not to the administrator, as seems to have been conceded by counsel in Cheney v. Gleason, 125 Mass. 166, while the contrary seems to have been assumed in Parker v. Simpson, 180 Mass. 334.
The defendant’s nest contention is not well taken. The administrator is entitled to redeem without taking out a license to sell the real estate. In Mason v. Daly, 117 Mass. 403, a license to sell the real estate was granted to the administrator, and that fact is1 stated in the opinion. But there is nothing in the act requiring this to be done, and the note of the commissioners makes it plain that they intended 4o give the administrator the power to redeem where no license to sell is
Where a bill to redeem is brought by an administrator under R. L. c. 187, § 33, the result enures exclusively to the benefit of the widow and heirs, in case no license to sell the real estate to pay debts has been granted to him. Aiken v. Morse, 104 Mass. 277. It was not intended by R. L. c. 187, § 33, to make a change in the rights of the persons interested, but to afford a remedy where many were interested and where some of them were likely to be persons who could not act for themselves. It ■does not deprive the heir or the widow of their rights to redeem. For these reasons the conveyance of the real estate to be made by the defendant should be to the heirs subject to the right of the widow to dower, if she has a right of dower.
The next question which arises is whether this court will entertain this bill so far as it seeks relief in respect of the land in ■Ohio. We are of opinion that such a bill is within the jurisdiction of a Massachusetts court, particularly as the deed was made -in Massachusetts by a Massachusetts citizen to a Massachusetts ■citizen. However it may be as to bills to redeem or foreclose a •mortgage as to which the authorities are not uniform, (on the one side see Kent, Ch. in Kershaw v. Thompson, 4 Johns. Ch. 609, 616, and Muller v. Dows, 94 U. S. 444, 448, 449, the doctrine of which' case has not extended,— see Huguley Manuf. Co. v. Galeton Cotton Mills, 184 U. S. 290, 294, — and on the other side see Kanawha Coal Co. v. Kanawha & Ohio Coal Co. 7 Blatch. 391, 415, Paget v. Ede, L. R. 18 Eq. 118,) a bill which is based ■on the doctrine of Campbell v. Dearborn is a bill for relief against fraud, not a bill dealing with the title to an estate in land. The fact that the fraud consists in the conveyance of •real estate is no -more material in such a suit than is the fact that the thing stipulated for is the conveyance of land in a foreign jurisdiction when specific performance of such a contract is sought here. The case comes within Reed v. Reed, 75 Maine, 264; Cranstown v. Johnston, 3 Ves. 170; S. C. 5 Ves. 277. See also Mercantile Investment & General Trust Co. v. River
We are of opinion that R. L. c. 187, § 33, applies to a bill to redeem on the doctrine of Campbell v. Dearborn, where the land is situated in a foreign country, and that the conveyance is to be made to those persons who are the heirs of the land by the laws of Ohio, where the intestate died, subject to the rights of dower, if any.
The next matter which has to be dealt with is in which capacity the defendant is to account for rents and profits and which has been referred to above. It has been found that although the assignment and conveyances here in question run to the defendant individually they were made in fact for the benefit of the estate. That means that they were assets of the estate for which it is her duty to account as administratrix. The rents and profits which accrued before the death of the intestate Edward Payson Clark were personal property when he died, and belong to the administrator. The rents and profits after the death of the intestate belong to the heirs, but since the administrator is redeeming in their interest he may deduct them in paying the amount which has to be paid to redeem.
Inasmuch as the personal property assigned was the son’s interest in his father’s estate and the debt for which that interest in the estate was assigned is a debt due to that estate, the plaintiff will not be entitled to a credit by way of income on that property in any event. To clear the estate and the security the plaintiff must pay his debt with interest, so that the estate can be settled.
The twelfth and twenty-first exceptions to the amended report are not well taken. Although the defendant is correct in her contention that a mortgagor who redeems must pay the whole debt, in this case the master has found that each conveyance was a separate transaction. The plaintiff therefore had in effect a right to redeem each conveyance on paying the debt which it was given to secure.
The defence which was successful in Hassam v. Barrett, 115 Mass. 256, does not appear to have been taken in the case at bar.
Decree accordingly.