Hoag v. Hoag

210 Mass. 94 | Mass. | 1911

Hammond, J.

The bill alleges in substance that the defendant and the plaintiff as husband and wife were joint tenants of certain real estate therein described, towards the purchase price of which the plaintiff contributed from her own money about $3,500, being more than one half of the whole price, that by reason of threats of bodily injury, and by fraud and duress practised upon her by the defendant, she was induced against her own will to convey all her interest in the property to him through a third person; and the prayer of the bill is that the deeds of conveyance be cancelled and the property be reconveyed to her.

The pleadings were completed and the case referred to a master, and, after an interlocutory decree overruling the defendant’s exceptions to the master’s report and confirming the report, there was a final decree for the plaintiff from which final decree the defendant appealed; and the case is before us upon this appeal.

It appears that at the hearing before the Superior Court upon the merits the defendant asked for certain rulings which evidently were not adopted by the court. Although the case is before us upon appeal from the final decree and not upon exceptions to the refusal to give these rulings, yet inasmuch as the propositions laid down in the rulings requested may be said fairly to be involved in the consideration of the appeal and furthermore to embody the only ground of the objections which the defendant in his brief makes to the decree, we shall follow the brief of the defendant and shall consider only the accuracy of the propositions upon which in his brief he relies.

It appears from the master’s report that the plaintiff had brought in the Probate Court two petitions against the defendant for separate maintenance, each alleging as a ground therefor cruel and abusive treatment on his part; that “ at least the prior suit” was heard and dismissed by the court solely upon the ground that inasmuch as on April 10,1909, she and her husband became reconciled and continued to cohabit together as husband and wife from that time until the fifteenth day of the same month, she had thereby condoned the cruelty of which she complained. And on her appeal to the Superior Court the same result was reached for the same reason. It is urged by the defendant that the dismissal of the petition on the ground of con-donation is as matter of law absolutely conclusive against the plaintiff in the present suit.

The deeds in question were executed in January, 1909. There can be no doubt that so far as respects the acts of cruelty before April 10,1909, whether or not they be all alleged in the petition, including those now relied upon to defeat these conveyances, the decree dismissing the plaintiff’s petition for a separate maintenance is conclusive against her so far as her matrimonial rights are concerned. Corbett v. Craven, 193 Mass. 30, and eases cited. Bassett v. Connecticut River Railroad, 150 Mass. 178, and cases cited. But condonation in its proper legal sense has reference only to marital rights and liabilities as such and to none other. And while acts which amount to condonation of marital wrongs as such may be evidence of ratification of an act done under duress, or waiver of a fraud leading to the act, they are not necessarily conclusive in a case like the present. The question is not whether there has been condonation, but whether the act which the plaintiff seeks to have declared void has been in any way ratified by her. If it has been, then she must stand by it, and, if it has not been, then unless barred by estoppel or loches she may avoid it. And that is so whether or not she, has condoned, so far as respects her marital rights, the violence by means of which she was led to the act. It is therefore manifest that the propositions contained in the first and second rulings requested by the defendant are not sound. Whether there had been ratification was a question, not of law but of fact; and in view of the disturbed condition of the mind of the plaintiff caused in part at least by the cruelty of the defendant, and of their past relations and the chances as to whether he would renew his acts of cruelty, the general uncertainty of his future conduct and the fact that she was living with him much of the time between the date of the conveyance and the filing of this bill, the court as the trier of fact may well have come to the conclusion that she neither in thought, word, or deed ever had ratified these conveyances. We see no error in such a finding.

There is nothing in the proposition contained in the third request that the plaintiff “in standing by and-seeing her daughter convey the property in issue to the defendant and making no objections is estopped from ever afterwards complaining of the act.” The daughter had no interest in the matter. She acted simply as the conduit through which the title passed from the plaintiff to the defendant. It is plain that as against the defendant there was no estoppel.

Nor has the plaintiff been guilty of loches. The deeds were executed on January 5,1909. This bill was filed on July 8,1909. During half of this time she was living with her husband and presumably to a greater or less extent under his influence. Her petition for separate maintenance was not dismissed by the Probate Court until after April 15,1909. In view of these facts and of the nature of her life with her husband in the past together with the fear she reasonably may have entertained as to his future conduct, she may well have hesitated to act without proper deliberation as to the time. And the court considering all the circumstances may properly have concluded that she acted without undue delay, especially when the, defendant does not seem to have been prejudiced thereby.

The defendant is not shown to be entitled to recover any sums ■ expended by him. The master has found that these expenditures “ were [made] in the ordinary upkeep and care of the property during a period of time when the same was occupied by the plaintiff and defendant as a home and with no expectation on the part of the defendant that he would be repaid such expenditure, and no request for such repayment in part was ever made upon the plaintiff by defendant prior to this suit.”

Decree affirmed.