324 Mass. 157 | Mass. | 1949
This bill in equity, originally brought by Addie C. Durgin and her husband, the plaintiff William
The bill sets forth that the consideration for the execution of the deed by Addie C. Durgin was a promise by the defendant Winifred L. Allen to furnish Addie C. Durgin as long as she should live “with all reasonable necessaries and conveniences of life and to see to it that she was provided with proper support and care. The consideration for the execution of the deed by the plaintiff, William Durgin, was that expressly set forth in the instrument itself.” There are allegations that the four parties lived together in the house from shortly before the execution of the deed until December 16, 1946, when Addie C. Durgin and her husband moved elsewhere; that the defendant Winifred L. Allen failed to perform her obligation as to support and care; and that there have been a failure of consideration and an unjust enrichment of the defendants.
The case was heard by a judge, who made a report of the material facts found by him. G. L. (Ter. Ed.) c. 214,
The final decree,, entered September 7, 1948, adjudged (1) that the “defendants” had been relieved of any contractual obligation toward the then plaintiffs for their care and support; (2) that the deed was a valid conveyance, and Addie C. Durgin had a life estate and the defendant Winifred L. Allen a remainder in the property; (3) that the defendants owed Addie C. Durgin $774 rent from January 1, 1947, to July 1, 1948; (4) that Addie C. Durgin was entitled to possession on November 1,1948; and (5) that the defendants should vacate the premises on or before November 1, 1948, and should pay her rent at $43 a month from July 1,1948, to November 1,1948. The last provisions were based on the housing shortage.
The judge found that in the spring of 1946 Addie C. Durgin “told the daughter that if her family would come to live with her and the father and take care of them and help to support them until they died she would give the property to her. The defendants agreed to it, and thereupon in May, 1946, gave up their home and moved in with the plaintiffs.” The mother then retained an attorney to draw the deed. The attorney advised the mother, as a protection for her in the event that the arrangement did not work out satisfactorily, to reserve a life estate, and a deed with such a reservation was executed, delivered, and recorded. The parties lived together until November, 1946, “when through no definite cause or substantial fault of either party, living together in one household became gradually intolerable.”
The sentence last quoted from the judge’s findings imports that the conclusion stated is permissible as matter of law and is found as matter of fact. Roney’s Case, 316 Mass. 732, 734. Hummer’s Case, 317 Mass. 617, 624. Demetre’s Case, 322 Mass. 95, 96. This was error, at least in so far as it concerns the plaintiff William Durgin. The plaintiffs, because of the death of Addie C. Durgin, do not ask us to make an analysis of her rights, and state in their brief that they do not argue that the deed is invalid. Accordingly, we omit consideration of such questions. But the plaintiff William Durgin’s contract was contained in the deed, and could not have been impaired by the reservation of the life estate. His release of “all rights of tenancy by the curtesy and other interests” was a good consideration for a promise of care and support. See Doyle v. American Fire Ins. Co. 181 Mass. 139, 142. See also Bullard v. Briggs, 7 Pick. 533,
The plaintiffs argue that there has been a breach of the contract with the plaintiff William Durgin, and that he has a choice of remedies: (1) damages (citing Amos v. Oakley, 131 Mass. 413, Parker v. Russell, 133 Mass. 74, and Soderlund v. Helman, 215 Mass. 542) or (2) specific restitution (citing Harvey v. Crooker, 267 Mass. 279, and De Angelis v. Palladino, 318 Mass. 251). See Rayner v. McCabe, 319 Mass. 311, 314, and authorities cited. We are not sure that there are any findings with respect to his contract. If so, they were not made in accordance with the principles herein set forth. The case must be heard again in so far as it concerns him. The findings as to payments to be made to Addie C. Durgin are to stand.
The final decree is reversed with costs, and the case is to stand for hearing in conformity with this opinion.
So ordered.