248 Mass. 354 | Mass. | 1924
It is found on evidence not reported that the plaintiff, seventy-five years old, is the father of the defendants, a son and daughter by his first marriage. In 1911 he bought a parcel of land with the buildings, which was subject to a mortgage of $4,000. But, his first wife having died, he married again in May, 1912, and
It is plain on the findings, that there was no gift. The contract, as mutually understood by the parties, enabled the plaintiff to obtain a valid release of his wife’s inchoate right of dower, while he was to remain in possession, receive the rent, pay the taxes, and at his request the property was to be reconveyed to him. Flynn v. Flynn, 171 Mass. 312, 314. It has been fully performed as to the first two stipulations, and, under the judge’s findings, the only defence now relied on is, that the plaintiff is precluded from showing by paroi evidence, that the defendants hold the property in trust.
It is true, that even if the relation between the parties is fiduciary in character, Story Eq. Jur. (13th ed.) §§ 218, 309, Stahl v. Stahl, 214 Ill. 131; 2 Ann. Cas. 744, and cases collected in note 777-779, the present record is insufficient to impose a constructive trust on the conscience of the defendants. They are not shown to have procured the transfer, or to be guilty of any fraudulent conduct during the preliminary transactions. The conveyance was purely voluntary on the part of the plaintiff. It is absolute in form, and no constructive trust arose at the time the deed was delivered. G. L. c. 203, § 1. Tourtillotte v. Tourtillotte, 205 Mass. 547, Kennerson v. Nash, 208 Mass. 393. Cushman v. Noe, 242 Mass. 496, relied on by the plaintiff is not in point. The apparent sale of personal property there set aside was held on the master’s report to have been a mere pretence and not an actual transfer.
But the plaintiff is not remediless. The defendants are not purchasers for value, and, having obtained their father’s estate under the mutual understanding that they were to reconvey at his request and having refused to make the conveyance, the consideration has wholly failed. Dix v. Marcy, 116 Mass. 416, O’Grady v. O’Grady, 162 Mass. 290, 293, Dixon v. Lamson, 242 Mass. 129, 137. As was
While the final decree granting specific relief as prayed must be reversed, the plaintiff is given leave to amend from a suit in equity into an action at law to recover the value of the property, within thirty days after rescript, upon such terms as the trial court may impose. If such amendment is not made, a decree is to be entered dismissing the bill. G. L. c. 231, §§ 55, 125. Donovan v. Walsh, 238 Mass. 356, 362.
Ordered accordingly.