321 Mass. 75 | Mass. | 1947
The plaintiff, a judgment creditor of the defendant Szczuka, seeks to reach and apply his interest in an amount alleged to be due to him from the Boston Housing Authority on account of the taking of certain premises in Boston, alleged to have been owned by him at the time they were taken. The plaintiff appealed from a final decree establishing her indebtedness against Szczuka and dismissing the bill against all the remaining defendants, who were the Boston Housing Authority, Peter Szczarzenia and Joseph Czajkowski.
The material facts found by the judge and those we find for ourselves from an examination of the evidence, Lowell Bar Association v. Loeb, 315 Mass. 176; Counelis v. Counelis, 315 Mass. 694, may be briefly stated. One Timmerman, who had acquired the premises formerly owned by Szczar-zenia by the foreclosure of a mortgage, conveyed them on September 4, 1929, to Szczuka, as trustee for Szczarzenia,.
In December, 1932, Szczuka, as trustee, executed a deed of all his interest in the premises to Czajkowski, and the latter executed a deed of all his interest to Szczuka individually. There was then a balance of $2,500 due to Czaj-kowski on his mortgage. These deeds were executed for the purpose of securing a new first mortgage in a larger amount than the one then on the property, and were left with the attorney who drafted them. Neither Szczuka nor Czajkowski at the time they were executed intended that they should pass a present interest in the property. Some two weeks after they were executed, the attorney who drafted them sent them to Czajkowski, who retained them until he lost them.
The principal contention of the plaintiff is that these deeds gave Szczuka absolute title to the premises subject to
The acts of the parties and the circumstances attending the execution of a deed are important as indicating their purpose and intent in determining whether there has been a delivery of the deed. The factors essential to delivery are that the grantor intend the deed to effect a present transfer of the property and that the grantee by his conduct assent to the conveyance. Creeden v. Mahoney, 193 Mass. 402. Atkins v. Atkins, 195 Mass. 124. Hall v. Sears, 210 Mass. 185. Whether there has been a delivery of a deed is ordinarily a question of fact. Mills v. Gore, 20 Pick. 28. Murphy v. Hanright, 238 Mass. 200. Reed v. Home Ins. Co. 295 Mass. 517. Szczuka and Czajkowski understood that the deeds Were executed for the purpose of refinancing the loans on the property and that, when it became apparent that this could not be accomplished, the deeds were to be of no further use. The possession, management, and control of the property continued after the execution of the deeds in the same manner as they had prior thereto. Neither. Szczuka nor Czajkowski intended or understood that the execution df the- deeds should presently effectuate a discharge of Czajkowski’s mortgage upon which there was a balance of $2,500 then due. The deeds Were never recorded.
The judge Was right in finding that these deeds had never been delivered and that, at the time of the taking of the property in 1940 by the Boston Housing Authority, Szczuka, the judgment debtor, had no title in the property. Shurtleff v. Francis, 118 Mass. 154. Parrott v. Avery, 159 Mass. 594. Barnes v. Barnes, 161 Mass. 381. Joslin v. Goddard, 187 Mass. 165. Tewksbury v. Tewksbury, 222 Mass. 595. Landry v. Landry, 265 Mass. 265. Murphy v. Smith, 291 Mass. 93. Silbert v. Equitable Life Assurance Society, 314 Mass. 406. Compare Sullivan v. Hudgins, 303 Mass. 442; Bianco v. Lay, 313 Mass. 444.
The right of redemption of Szczuka, as trustee for
There is no merit in the contention of the plaintiff that Czajkowski was guilty of loches.
Decree affirmed.