221 Mass. 336 | Mass. | 1915
This is a bill to reach and apply property of the defendant Levy in the hands of the other defendant, Harry L. Lurie. At the trial it developed that the title to the property in question had been transferred to Yetta Lurie and a motion by the plaintiff to join her as a party defendant was allowed.
All this was irregular. The motion to join Yetta Lurie as a party having been allowed on the ground that she had a real interest in the goods, the plaintiff then, if she did not appear voluntarily, ought to have caused her to be summoned to appear iü. court and then to have moved to have the bill taken for confessed if she failed to appear. If the property or its proceeds which the plaintiff wanted to reach was in the hands of Guttentag, he also should have been joined as a party. There is nothing in the record to show his relation to the goods. For aught that appears, he may have attached the goods on a writ in favor of an innocent creditor of Harry Lurie or Yetta Lurie. No decree in a case like the present can run against a stranger until he has been made a party to the suit and is subject to the jurisdiction of the court.
But these points cannot be decided upon this record, for the reason that they affect the rights of Yetta Lurie and Guttentag, neither of whom have been made actual parties or been heard.
Decree reversed.
The case was heard by Wait, J., on March 16,1914. He ordered a decree on March 27 and filed a memorandum of findings on May 18, 1914. On July 30 the motion to join Yetta Lurie as a party defendant was filed “as of March 16” and it was allowed on August 4. The final decree was entered on November 19.
“Kate Levy was doing a poor business and owed creditors she did not see her way to pay. She had a stock worth several hundred dollars.
“She had borrowed from her son and desired to repay him $225, so that he might, get an engagement ring for his betrothed, and he was pressing for his money. To pay him, she arranged to borrow of her son-in-law, Lurie, who was willing to lend $250, but wanted security. After inquiry of a lawyer, he was informed, he could lend, take a mortgage on her stock of goods, take possession immediately and foreclose at once if she did not pay. He loaned $250, to be repaid $25 per week, took the mortgage and possession, and then at the end of a week, when on demand she failed to pay the $25, gave the proper statutory notices and foreclosed, his wife buying in at the sale.
“This transaction was honest enough on Lurie’s part, but he knew the situation and was really hindering and delaying the creditors of Mrs. Levy. I believe he paid over his own money and expected to be able to hold a valid mortgage, but the whole transaction was devised to enable Mrs. Levy to pay for her son’s engagement ring. Lurie was unwilling to lend to the son, and was unwilling to lend without security.”