240 Mass. 380 | Mass. | 1922
This is a suit in equity whereby the plaintiff, from whom the defendant, his former wife, has obtained a divorce for his wrong, seeks to compel conveyance to him of certain parcels of real estate. These parcels were conveyed to the defendant when she and the plaintiff were living together happily as husband and wife. The case was referred to a master under a rule which required him “to hear the parties and their evidence and report his findings to the court on or before [a certain date] together with such facts and questions of law as either party may request.” This did not require a report of the evidence or any part of it. The duty of the master was performed when he reported such facts pertinent to the issues as he found and such as he was requested by either party to find with his rulings of law.
There was no error of law in drawing an unfavorable inference against the plaintiff because he failed to call available witnesses to corroborate his version of conversations between himself and wife. Howe v. Howe, 199 Mass. 598. Rioux v. Cronin, 222 Mass. 131, 135. Buckley v. Boston Elevated Railway, 215 Mass. 50, 56. McKim v. Foley, 170 Mass. 426.
The master’s findings of fact are not reversible unless shown by the report to be erroneous. Greenhood v. Richardson, 226 Mass. 208. Jenanyan v. Fisher, 229 Mass. 472.
The plaintiff can recover lands thus conveyed to a wife during coverture only when there is an enforceable trust. There was here plainly no express trust. There was no instrument in writing which could as matter of law be held a compliancé with the statute of frauds. The receipts given by her fall far short of such instrument. It was said in Pollock v. Pollock, 223 Mass. 382, at page 384, "To establish a resulting trust the husband must prove that he furnished himself the entire consideration or a specific and definite part thereof, for which it was intended he should receive a determinate and fixed fraction of the whole estate conveyed. Bailey v. Hemenway, 147 Mass. 326. Skehill v. Abbott, 184 Mass. 145. In addition, the evidence must be clear that it was not intended at the time of conveyance that the wife should take a beneficial interest in the property by way of gift, settlement or advancement. Cairns v. Colburn, 104 Mass. 274. Edgerly v. Edgerly, 112 Mass. 175. Patterson v. Patterson, 197 Mass. 112.”
The case at bar on its merits is within the authority of numerous decisions. English v. English, 229 Mass. 11. Carr v. Frye, 225 Mass. 531. Keown v. Keown, 230 Mass. 313. Tileston v. Tileston, 234 Mass. 530.
The motion to recommit the report to the master was addressed to the discretion of the court and there is nothing to indicate that it was not wisely exercised. Smith v. Lloyd, 224 Mass. 173, 175. Baush Machine Tool Co. v. Hill, 231 Mass. 30,
Decree affirmed with costs.