283 Mass. 353 | Mass. | 1933
This is an appeal from a final decree after rescript accompanying the decision reported in 277 Mass. 477. The record in the case at bar consists of a copy of the rescript, of the final decree after rescript, and of an appeal from that decree by David Lash, Sarah Cohen, and the administrator of the estate of Alexander C. Lash, and nothing more. There is no finding of facts.
On appeal from a final decree in equity on such a bald record as this, without report of evidence and without a finding of facts, the only question presented is whether as matter of law the decree could rightly have been entered on the pleadings. Levinson v. Connors, 269 Mass. 209.
There can be no appeal from a final decree entered substantially in accordance with a- rescript of this court. “Where the form of the final decree or judgment is not embodied in the rescript or mandate, in appropriate cases examination will be made on appeal of the subsequent
The rescript in the case at bar did not state the form of the final decree but ordered among other matters not now material that a final decree be entered “establishing the amount due to the plaintiff from the defendant on the basis of an unpaid balance of indebtedness at the date of the filing of the bill of $14,618.97, as found by the master, subject to such modifications as subsequent events may require.” The final decree after rescript in its paragraph 2 declares the unpaid balance of indebtedness of the defendant David Lash to the plaintiff to be $18,003.33.
It is manifest from the form of the rescript that evidence or statements of fact in place of evidence might be pertinent upon the hearing for final decree after rescript in two respects at least. (1) The rescript contains no division between principal and interest of the $14,618.97 constituting the unpaid balance of indebtedness. That division must be determined in some way. (2) The modifications in that sum required by subsequent events must be determined. These matters were not set out in detail in the master’s report printed as part of the record when the case was here before.
The defendant David Lash invokes rules for computation of interest to allocate the unpaid balance of indebtedness between principal and interest and then to ascertain the amount due at the date of the final decree. This method is not convincing. A mere matter of arithmetical calculation would naturally be agreed upon by the parties. The parties, however, are in controversy as to the way in which the indebtedness established by the final decree after rescript was ascertained and as to the correctness of the method employed to that end. If the defendant David Lash desired this court to review those or any other factors connected with the sums stated in the final decree, he ought
The final decree after rescript in paragraph 1 adjudges the conveyance by the defendant David Lash to the defendant Sarah Cohen to be fraudulent as against the plaintiff; in paragraph 3 orders the defendant David Lash “to pay forthwith to the plaintiff the sum now due and payable” with costs of suit, both being specified; in paragraph 4 orders the defendant David Lash “to furnish to the plaintiff sufficient security by bond or otherwise to satisfy the unmatured balance” of both principal and interest of his note to the plaintiff; and in paragraph 5 it is decreed that in the event the defendant David Lash “shall refuse or shall neglect to pay to the plaintiff within ten days from the date of this decree” the sums specified in paragraph 3 “and by bond or otherwise furnish to the plaintiff” the security specified in paragraph 4, then a receiver is appointed to sell the real estate found to have been fraudulently conveyed by the defendant David Lash. These provisions of the decree must be construed together. Doubtless the annulment of the conveyance by David Lash to Sarah Cohen only restored to the plaintiff and to his debtor as to each
The order for sale in the final decree is definite to the effect that the sale and conveyance of the fraudulently conveyed real estate by the officer of the court shall be subject “to the dower rights of Florence Lash.” That is sufficiently precise to protect such dower right and to insure a fair sale without special repetition of the dower reference in confirmatory deed of Sarah Cohen. Such confirmatory deed would convey no more than was described in the deed of the receiver.
There was no error in awarding costs in favor of some defendants and not awarding costs to other defendants against whom no relief was afforded. The matter of costs in equity rests entirely in sound judicial discretion. G. L.
Decree affirmed with costs.