178 Mass. 247 | Mass. | 1901
This is a bill in equity seeking to compel a conveyance of certain land from the defendant to the plaintiff on the ground that the defendant obtained the conveyance to himself without consideration by undue influence exercised over one Mary McLaughlin, the owner, of whom the plaintiff is the executrix and residuary devisee. The defendant pleads a former adjudication upon a bill, brought by Mary McLaughlin and carried on by the present plaintiff after Mary McLaughlin’s death, in which it was alleged that the defendant obtained the same
We are of opinion that the decree of the Superior Court was right. The object and “ petitory conclusions ” of both suits are the same: to annul the effects of the same deed by a reconveyance. Gillespie v. Russel, 3 Macq. 757, 760. It is. true that the ground on which the reconveyance now is sought differs somewhat from that formerly alleged. But, so far as appears, both bills go on generically the same footing, that Mary McLaughlin was given an improperly created motive for action by the defendant, and differ only as to what the motive was. It does not appear that the fraudulent statement alleged in the first bill went to the nature and identity of the instrument so as to raise a question whether Mary McLaughlin might not have denied it to be her deed; O'Donnell v. Clinton, 145 Mass. 461, 462, 463 ; on the contrary the statement on its face, as set forth, dealt only with the importance of the transaction, a consideration which could affect only motives. The undue influence alleged in the present bill of course concerns motives alone. Fairbanks v. Snow, 145 Mass. 153, 154.
Again it does not appear that the plaintiff did not have all the knowledge at the time of bringing her former bill that she now has. If she had, we should hesitate to admit that she would not have been barred even if the former bill had distinctly alleged a misrepresentation as to the nature of the instrument which Mary McLaughlin signed, and thus had alleged what in Scotland would be called a different medium concludendi. If the two grounds then should be regarded as inconsistent, there might be a question as to the propriety of allowing a plaintiff to speculate upon alternative and irreconcilable statements of fact. If they still would be consistent the plaintiff properly might be held bound to bring forward all her grounds of attack at once. See Wildman v. Wildman, 70 Conn. 700, 710. But see Phosphate Sewage Co. v. Molleson, 5 Ct. of Sess. Cas.
Beeree affirmed.
