317 Mass. 512 | Mass. | 1945
The plaintiff is the wife of the defendant. The bill of complaint alleges that on or about May 23, 1932, the defendant, desiring to purchase for $5,500 certain real estate at 97 North Street, Methuen, fraudulently obtained from the plaintiff $1,800 toward the purchase price; that he represented that title would be taken solely in her name; and that “intending and contriving to defraud and to cheat the said plaintiff of her savings” he took title instead in the names of the plaintiff and the defendant, who were described in the deed as “husband and wife ... as joint tenants and not as tenants in common.” There was a prayer for an order for the repayment of $1,800 and interest. The trial judge in “findings and order for decree” found in substance that the facts were in accordance with the above summary of the allegations of the bill of complaint except that the amount obtained by fraud was only $1,000. A final decree was entered ordering the defendant to pay the plaintiff this sum with interest from May 23, 1932. The defendant alone appealed, and the case is here with a report of the testimony.
It is our duty to examine the testimony and reach our own conclusions upon it, accepting the findings of the trial judge which are based upon the credibility of oral evidence and are not plainly wrong, but drawing our own inferences from facts admitted or found, whatever may have been those drawn by the trial judge. Malone v.
The deed as actually delivered conveyed a tenancy by the entirety. Franz v. Franz, 308 Mass. 262. If title was so taken through fraud of the husband, equity may give relief. Powell v. Powell, 260 Mass. 505, 508. Cram v. Cram, 262 Mass. 509, 513. Charney v. Charney, 316 Mass. 580, 582-583.
1. The defendant attacks numerous findings of the trial judge as being plainly wrong. While the material evidence is meager, we are unable to reach the conclusion that any finding was plainly wrong. Certain of the findings do not need to be considered, as it is unquestioned" that the plaintiff paid the $1,000. It is immaterial whether the defendant was in need of this sum, or whether it was at his request that the money was withdrawn from a bank, or whether the parties were at home or in a lawyer’s office when the money was paid. The fundamental fact is that the plaintiff from her own funds paid' this sum toward the purchase price. The finding to this effect is amply supported by the evidence. The findings that “the plaintiff was illiterate, being scarce [sic] able to recognize her own name,” and that “the defendant was somewhat further developed in'this regard,” rest peculiarly upon the observation of the parties as witnesses, and there was also some direct testimony in these respects. Whether the plaintiff was “inexperienced in real estate transactions” or whether “the defendant previously had experience in buying real estate” does not affect the basic issue. The vital findings are: The “plaintiff paid the $1,000 toward the purchase price with the intention, and because she believed, that the real estate then being purchased would stand in her name only as the sole owner. . . . [At] the first interview between the parties to. this action which preceded the transaction, their attorney was told that the plaintiff was to be named in the deed as the grantee. . . . [When] the proposed deed, drawn by the grantor’s attorney was brought to the law office where the transaction
There was testimony from the plaintiff, disputed by the defendant, that, .following an oral agreement to buy from the owner, the parties went to the office of their attorney, now deceased, at which time the defendant asked the attorney to examine the title, and said, “I take from my wife $1,000 and I want to make deed on her name.” On cross-examination she was asked, “And do you remember that you and your husband said it was to be made out jointly?” to which she answered, “No, he said, ‘Just my wife.’” She was further asked, “You yourself said that it was to be jointly?” and her answer was, “No, I didn’t say nothing, just my husband.”- She further testified that three or four days later, when the deed was delivered, her husband and she, the seller and her husband, the seller’s attorney, and the real estate broker met with the same attorney as before in his office, and that the seller’s attorney brought the deed all made out except for the signature of the seller and her husband, who signed at that time. On cross-examination she testified that she remembered that the attorney for the seller asked her
2. The plaintiff was ‘ not guilty of laches. Calkins v. Wire Hardware Co. 267 Mass. 52, 69. Norton v. Chioda, ante, 446, 452.
So ordered.