Cleval v. Sullivan, 258 Mass. 348

Cleval v. Sullivan

258 Mass. 348 | Mass. | 1927

Crosby, J.

This is an action of contract to recover a deposit of $1,000, paid by the plaintiff under a written agreement to purchase from the defendant a certain parcel of real estate situated in Boston.

On August 13, 1924, the defendant bought the property at a foreclosure sale conducted by the Mutual Finance Corporation, mortgagee. The deed ran to “Arthur C. Sullivan, Trustee,” but contained no reference to the nature or terms of the trust; and at the time of its delivery, no particulars thereof, nor the names of the beneficiaries, nor the powers and limitations of the trustee were set forth in documentary form.

*350On October 31, 1924, the agreement was executed, signed by "Arthur C. Sullivan, Trustee,” and the deposit was paid to the defendant. The agreement provided for the conveyance to the plaintiff of "a clear title subject to a mortgage for One Hundred Thousand Dollars ($100,000) ”; and further provided that the deposit should be returned if the defendant were unable to make the conveyance as stipulated. After examining the records, the plaintiff objected to the title on the ground that there was no satisfactory evidence of the defendant’s authority as trustee to transfer the property.

On December 4, 1924, the defendant executed, and shortly thereafter recorded in the Suffolk registry of deeds, a declaration of trust, stating that he had purchased the property and was holding it for the benefit of the Commercial Finance Corporation and the Mutual Finance Corporation upon the terms and conditions specified in the declaration. On the same day, as trustee under said declaration of trust, he filed in the Probate Court for Suffolk County a petition for a license to sell the property at public auction or private sale and invest the proceeds. The petition was assented to by the two corporations above named who were alleged in the petition to be the only parties interested. On December 8, 1924, the Probate Court, "all parties interested having assented and no person objecting thereto,” entered a decree authorizing the sale. By agreement between the parties the time for passing papers was extended .to December 20, 1924, at twelve o’clock noon.

There was evidence from which the jury could have found that the plaintiff was ready, willing and able to carry out the agreement at the time and place stipulated, but that the defendant was unable to perform because of the alleged defect in the title, and for the reason that he did not tender a deed. The plaintiff thereupon demanded the return of his deposit, which was refused. The record states that the foregoing is all the evidence material to the questions involved.

The declaration contains two counts, the first for money had and received, the second for breach of contract. The case was tried'before a judge of the Superior Court and a jury. *351At the conclusion of the evidence the defendant requested that the following instructions be given: “6. The defendant had a marketable title and therefore a sufficient title under the terms of the contract .... 8. The defendant’s title at the time of the plaintiff’s default was free from reasonable doubt. 9. The defendant’s title at the time of the plaintiff’s default was a marketable title.” The judge ruled that the question of title was for the jury and refused to give the requests; to this refusal the defendant excepted.

The agreement does not in terms call for a clear record title, but for the conveyance of a clear title free from encumbrances except a mortgage for $100,000. The distinction between a clear record title and a clear title was pointed out in Aroian v. Fairbanks, 216 Mass. 215. Shanahan v. Chandler, 218 Mass. 441, and O’Meara v. Gleason, 246 Mass. 136. The first rests upon the record alone which must show an indefeasible, unencumbered estate. Morse v. Stober, 233 Mass. 223. The second relates to the- actual title and may be shown by evidence independent of the record. In the case last cited, which was a bill for specific performance, it was said at page 226: “A title not good on the record thus may be shown by oral or other evidence outside the record to be marketable beyond any reasonable doubt. . . .” This rule is equally applicable to actions for the breach of contracts to purchase and sell real estate. See Foster, Hall & Adams Co. v. Sayles, 213 Mass. 319.

The question, whether the defendant’s title was clear and free from encumbrances except the mortgage, was one of fact, and was properly submitted to the jury with the burden upon the plaintiff to prove that the defendant’s title was not good beyond a reasonable doubt, and that the defendant did not have a marketable title. It could not rightly have been ruled that the title was good beyond a reasonable doubt, and that it was marketable under the terms of the agreement. These were questions of fact. It follows that the defendant’s sixth, eighth and ninth requests were rightly denied. Shanahan v. Chandler, supra.

The deed to the defendant describes him as trustee, with nothing to show the entire terms of the trust. After the *352delivery of the deed, the declaration of trust was executed and, was duly recorded as required by G. L. c. 203, § 2. Sturtevant v. Jaques, 14 Allen, 523.

The declaration of trust is not before us. All that appears in the record respecting its terms is that the defendant "purchased and held the property for the benefit of Commercial Finance Corporation and Mutual Finance Corporation upon the terms and conditions specified in the document.”

The evidence submitted at the trial is not reported in full, and we have no means of knowing what evidence was produced. It may have been conflicting respecting the entire terms of the trust, the identity of the beneficiaries, and the conditions under which the property could be conveyed. If the facts were in dispute and the credibility of witnesses was in issue and different inferences could be drawn from the facts proved, it could not properly have been ruled that the defendant’s title was clear beyond a reasonable doubt. Kane v. Learned, 117 Mass. 190, 194. Rand v. Farquhar, 226 Mass. 91.

It is the contention of the defendant that the Probate Court had jurisdiction of the subject matter (G. L. c. 215, § 6; c. 203, §§ 16-22); that, the court not having exceeded its jurisdiction, the validity of the decree cannot be successfully attacked in a collateral proceeding; and that therefore the trial judge erred in permitting the jury to make any finding in conflict with the decree.

It is to be observed that the petition for license to sell the property was signed by the defendant, as trustee, and assented to by the two corporations above named, and that they were described as the only persons interested, but no notice upon the petition was therein requested and none was given. It follows that the license, to sell was issued solely upon the consent of the parties named in the petition. It was in effect a consent decree.

A license to sell real estate held in trust may under G. L. c. 203, § 16, be granted "after notice.” A license granted by the Probate Court to sell real estate issued under a statute expressly requiring a notice to persons interested is void if *353no notice is given, because the court is without jurisdiction to make the decree on which it is founded. It was said by Knowlton, J., in Nazro v. Long, 179 Mass. 451 at page 455, that even if such notice were not expressly required by the statute, "the principles of natural justice would require it.” See Hellier v. Loring, 242 Mass. 251, 252; Savage v. Welch, 246 Mass. 170, 184.

The decree had no binding effect upon persons who were not before the court. It was a question for the jury to determine upon the entire evidence whether there were beneficiaries of the trust other than the two corporations which assented to the petition, and whether the terms of the trust were different from those recited in the declaration of trust on which the petition was based. The facts recited in the petition, and assented to by the parties thereto, and the license to sell cannot affect the rights of parties in interest who had no notice of the petition or opportunity to be heard. See Dwyer v. Dwyer, 239 Mass. 188.

The cases of Boston Safe Deposit & Trust Co. v. Mixter, 146 Mass. 100, and Batt v. Mallon, 151 Mass. 477, are distinguishable in their facts from those in the case at bar. In both of those cases the decrees were entered after full public notice had been given to all persons interested.

As the requests for rulings were rightly denied and the case was properly submitted to the jury, the exceptions must be overruled.

So ordered.