Moran v. Somes

154 Mass. 200 | Mass. | 1891

Morton, J.

1. The agreed facts state that, prior to the making of the deed from the defendant to the plaintiff, the husband of the defendant had obtained in Missouri a legal and absolute divorce from her for a cause other than adultery. Under the statutes of this State, the defendant therefore became entitled to the immediate possession of all her real estate, in like manner as if her husband were dead; in which event he could not, of course, have any claim upon it. The former husband of the defendant has therefore no right or interest as tenant by the curtesy initiate in said land. Pub. Sts. c. 146, § 24. Dunham v. Dunham, 128 Mass. 84.

2. Even if the divorce obtained by the defendant’s former husband in Missouri could be made the ground of an application by him for alimony in this State from the defendant, (which we do not intimate,) the only way in which he could obtain a lien upon the property of the defendant to recover the payment of any sum that might be awarded him would be by attachment or other suitable process. Not only was there nothing of the kind when the conveyance "was made, but no proceedings had been commenced by the former husband. He has no interest in said lot, therefore, depending on any possible claim which he had or might make or have against the defendant for alimony.

3. No trust in lands in this State, except such as may arise or result by implication of law, can be created or declared, unless by an instrument in writing signed by the party or his attorney creating or declaring the trust. Pub. Sts. c. 141, § 1. The trust set up by the former husband of the defendant in regard to said land is, therefore, invalid, and cannot be enforced, even if the facts concerning the same be as he alleges. Campbell v. Brown, 129 Mass. 23.

4. We think the deed from Somes to Rand must be held to convey all the interest which the grantor had, at the time of its execution and delivery, in the tract described in it. It must be taken most strongly against the grantor, and the words “ all my right, title, and interest ” are not to be cut down by the subsequent reference to the two deeds, and the statement that his interest in the estate is three undivided fifths, which may well have arisen from forgetfulness, and was evidently a mistake. Worthington v. Hylyer, 4 Mass. 196. Bott v. Burnell, 11 Mass. 163. Melvin v. Proprietors of Lochs & Canals, 5 Met. 15. Hastings v. Hastings, 110 Mass. 280. Moreover, the statement that his interest is three fifths purports to be made as a statement of all his interest, and there are no words which indicate per se any intention to convey less than his whole interest. The references to the two deeds are evidently made for the purpose of describing the property, and not the amount of interest or the quantity of the estate conveyed.

We do not think that the notice given by Somes to the plaintiff in any way affects, or impairs, or clouds the plaintiff’s title, and according to the terms of the report the entry must be,

Judgment for the defendant.