168 Mass. 333 | Mass. | 1897
We understand that the plaintiff excepted to the ruling that there was not sufficient evidence to warrant the jury in finding that the deed was procured by fraud. The principal questions are whether there was evidence, including any which should have been admitted, tending fairly to show that the defendant obtained the deed by fraud, and whether, if there was, the plaintiff is entitled to relief.
We think that there was evidence on which the jury fairly might have found that the deed was procured by fraud. The plaintiff’s wife died seised of the real estate in question, which was less inwalue than $5,000. She left no issue, and the plaintiff did not assent in writing to the will. The real estate therefore descended to him. Pub. Sts. c. 124, § 1. Pub. Sts. c. 147, § 6. St. 1887, c. 290, § 2. St. 1889, c. 204, § 1. Lavery v. Egan, 143 Mass. 389. Lincoln v. Perry, 149 Mass. 368. Johnson v. Williams, 152 Mass. 414.
The defendant was executor of the will, and may be assumed to have known the actual state of the title. There was evidence tending to show that he represented to the plaintiff that he had no rights or title in the house, but that he would do the best he could for him, and that the best he (the plaintiff) could do would be to go to work. There was also evidence tending to show that he told the plaintiff that there was nothing left for him in the will, — meaning that the plaintiff should understand thereby, as the jury might have found, that he had no rights in the property
The question remains whether the plaintiff would be entitled to relief. We think that he would be. He must be presumed to have known the law, however ignorant of it he may have been in fact. But his case is not one simply of ignorance or mistake in respect to the law. The defendant’s representations, though involving to some extent matters of opinion, were not so expressed, and related to a question of fact, namely, the right or title of the plaintiff. Nash v. Minnesota Title Ins. & Trust Co., and Burns v. Dockray, ubi supra. It has been said that “ a representation concerning a man’s private rights, though it may involve matters of law, is as a-whole deemed to be a statement of fact.” Pollock, Torts, 242. See also Alton v. First National Bank of Webster, 157 Mass. 341. Even in the case of a mistake of law, it has been held that “ inequitable, unfair, and deceptive conduct which tends to confirm the mistake and conceal the truth ” will entitle a party to relief in equity. Haviland v. Willets, 141 N. Y. 35. We find no error in regard to the exclusion of testimony, except that already referred to.
We assume that the demurrer has been overruled or waived, although upon the papers before us no disposition appears to have been made of it.
On the whole case, we think that, as provided in the exceptions, the finding and decree must be set aside, and the case stand for trial.
So ordered.
