265 Mass. 563 | Mass. | 1929
This case comes before this court on the appeal of the plaintiff from the judge’s findings, rulings and final decree.
It is a bill in equity wherein the plaintiff seeks to establish
The judge further found that in 1921 the plaintiff began the construction of two apartment houses and two garages on the premises, in addition to the house in which he was living; that to finance the erection of the buildings loans aggregating $11,000 were placed with the East Cambridge Savings Bank upon the notes of the defendant secured by her mortgages of the premises, and that the proceeds, placed in a joint account to the order of the plaintiff and defendant, were used in thé erection of the new buildings; that the defendant in 1918 realized $13,500 and in 1921, $2,500 from the sale of certain property that had belonged to her mother and had been conveyed by the other heirs and by the plaintiff to the defendant; that the proceeds of the sale, save to the extent of $1,000, were devoted by the defendant with the plaintiff’s full knowledge and by his desire toward the cost of the erection of the new buildings on the land here in issue; that the defendant signed the notes and mortgages and con
Upon the findings, the trial judge, on April 5, 1927, made the order for a final decree which follows: “Let a final decree issue that the defendant holds the legal title of the premises described in the bill in trust for the plaintiff and that, upon the plaintiff’s causing the defendant’s note or notes held by the East Cambridge Savings Bank secured by mortgage or mortgages of the premises here in issue, to be cancelled and surrendered to the defendant, and upon repayment to the defendant of the sum of $15,000 with interest from the date of the filing of the bill, the defendant shall convey to the plaintiff by a good and sufficient deed the premises here in issue.”
After the order for the final decree, the hearing was reopened to receive further evidence with respect to the Webster Avenue property sold by the defendant and as to what part of the proceeds, if any, was used in the development of the premises here in question, and the judge made the following report: “This hearing having been held, upon consideration of the evidence submitted, I find no occasion to change the findings with respect to this matter set forth in said finding of April 5, 1927. The question of whether or not the defendant held the Webster Avenue property on a trust, express or implied, for the plaintiff and the heirs at law of plaintiff’s first wife is not in issue in this case, and is not involved in this decision.” The evidence upon which the report of the judge rests is not reported. The findings of the report are consistent with each other and with the allegations of the bill and answer; they consequently must stand. Glover v. Waltham Laundry Co. 235 Mass. 330.
The question is, Had the trial judge authority to decree that the conveyance to the plaintiff should be made upon the plaintiff’s performance of the conditions which are exacted in the final decree? We think the defendant before being compelled to make the conveyance to the plaintiff should be indemnified against liability on the notes which she has given, and remunerated for the money which she has expended upon the property at the request of the plaintiff and in the belief that she was the full owner of the legal and equitable title thereto. To hold otherwise would be to inflict upon the defendant an unjust and unconscientious injury and loss, Glass v. Hulbert, 102 Mass. 24, 36; see Bradbury v. Birchmore, 117 Mass. 569; and would be to contravene the maxim that those,seeking equity must do equity.
Decree affirmed with costs.