Montgomery v. Pickering, 116 Mass. 227

Montgomery v. Pickering

116 Mass. 227 | Mass. | 1874

Colt, J.

The plaintiff seeks to set aside a deed of land made by her, through the procurement of Isaac H. Pickering, to his wife, the other defendant, and to recover a sum of money paid by the city of Boston as damages for land of the plaintiff taken for streets. Both the deed and the money paid by the city to Pickering are alleged to have been obtained by fraud, and upon mutual mistake of fact affecting alike the consideration of the deed and the payment of the money.

The case was heard by a justice of this court upon pleadings and oral evidence, and comes up with a report of all the evidence upon appeal from his final decree in favor of the plaintiff.

*230It is not contended, upon the case thus presented, that the decree does not follow the frame of the bill, and is not justified by the pleadings. There is no report of the facts on which it is based found by the court; no question of law is reserved by the judge. The principal question open is whether the evidence before the court supports the judgment below.

On appeal from the decree of a single judge upon oral evidence duly reported, the case is heard upon the same evidence, unless leave to exhibit further proof has been granted. Gen. Sts. a. 113, §§ 8, 21. Upon such appeal, great weight is allowed to the decision of the court below. The judge who sees and hears the witnesses, and observes their conduct on the stand, can best judge of the weight to be given to their statements. The original decree must stand unless it clearly appears to be erroneous. Reed v. Reed, 114 Mass.

Upon a careful revision of the evidence, we cannot declare the decree in this case erroneous. The fraud alleged is wholly a question of fact. It is not necessary or profitable to discuss in detail the evidence by which it is established. It is enough that it sufficiently proves the fraud with which Isaac H. is charged in obtaining the original agreement to convey and the subsequent order on the city. The judge must have found that this original fraud was not cured or waived by the subsequent conduct of the plaintiff, and there is nothing to show such finding erroneous. Mrs. Pickering’s title, it is conceded, is no better than her husband’s, and therefore cannot prevail against this proceeding.

But the defendants contend, that, as the subsequent deed to Mrs. Pickering appears to have been given under legal advice, with full knowledge of the original fraud and of the plaintiff’s legal rights, it must be treated as ratifying and confirming the previous transactions with the defendants.

The deed in question does not expressly confirm, the validity of the previous contract. It was not founded on any new consideration, or given in settlement of a disputed claim. It was required by the terms of the original contract, and there is nothing to show an intention to forgive the fraud. To have effect as a confirmation, such deed must appear to have been given with that intention by one who was not under the influence of the previous transaction. When relied on as a defence in a case where fraud *231is clearly established, it is said that it must stand upon the clearest evidence, because the act is so inconsistent with justice and so likely to be connected with the fraud. Morse v. Royal, 12 Ves. 355, 373. The deed must be so disconnected with the previous dealings as to leave the grantor the complete power of determining, as upon an original act, whether he will do it or not. Crowe v. Ballard, 1 Ves. Jr. 215. Or, as it is said in the more recent case of Moxon v. Payne, L. R. 8 Ch. 881, the parties must be at arms’ length and stand on equal terms. In the case at bar, the money of the plaintiff, wrongfully obtained from the city, was in the hands of the defendants. The deed appears to have been delivered as a means of recovering the money and saving the plaintiff from further loss, without any evidence of a purpose to give up whatever remedy she might have at law or in equity against them, and cannot, by the rules stated, be treated as conclusive against her.

Nor was there any necessity, upon the facts disclosed, for the plaintiff to restore or offer to restore the defendants to the position in which they were before the deed was executed. By the payment made to her upon delivery of the deed the plaintiff took nothing from the defendants that she was not entitled to, and there was nothing, therefore, on her part to be restored.

At the hearing before a single justice, the plaintiff herself testified and called as a witness one who had been her legal adviser in reference to the transactions in question. He was not then asked as to his communications with his client, but he was cross-examined by the defendants’ counsel as to all matters of fact which came to her knowledge before the execution of the deed. After the evidence was all in, he was recalled and asked by the defendants what conversations he had as counsel with the plaintiff in reference to making the deed and giving the receipt, and for what reason he advised the delivery of the deed. But it was ruled that what passed between counsel and client was not admisible, and the evidence was excluded.

It is contended that this ruling was wrong, because the exclusion of the evidence offered is a privilege, which the client may waive, and in this case has waived by becoming a witness in her own behalf. But this alone, in the opinion of the court, does not amount to such waiver. Decree for the plaintiff with costs.