Murphy v. Moore

228 Mass. 565 | Mass. | 1917

Carroll, J.

The plaintiff, in April, 1906, mortgaged for the sum of. $5,000 certain personal property to James F. Moore. Moore died intestate December 27, 1908, and his widow Margaret J. Moore, the administratrix of his estate, is one of the defendants in this suit; the other defendant, Bertha L. Moore, is his daughter. The plaintiff brings this bill for the discharge of the mortgage, contending that it was given to James F. Moore to secure his indorsement and that of Mrs. Moore on the plaintiff’s promissory notes amounting to $1,400, which notes have now been paid. The defendants contend that the plaintiff and Moore were partners and that the mortgage was given to secure the interest of Moore in the partnership. They have filed a cross bill praying for a settlement of the partnership affairs.

The case was referred to a master who found there was no partnership, that the mortgage was given to secure the indorsement on promissory notes amounting to $1,400 which were paid before 1908, "that one purpose of the mortgage was to ward off possible attachments,” and that the mortgage was written for an amount in excess of the liabilities to “prevent attachments by possible future creditors.” The defendants filed exceptions to the master’s report. A decree was entered directing the defendants to execute and deliver a discharge of the mortgage, and dismissing the defendants’ cross bill.

After the master had prepared a draft copy of his report, he notified counsel of the time and place to attend and hear the same, and suggest such alterations as they thought proper. A hearing was held on October 2 and October 3, 1916, and on October 6, 1916, the master settled the draft of his report, gave notice thereof to counsel and furnished them with a copy. On October 19, more than five days after the draft of the report was settled and counsel notified, the defendants’ counsel brought in the written objections thereto.

As the defendants failed to comply with Equity Rule 31, allowing five days for bringing in the objections, their exceptions are not before us. Smedley v. Johnson, 196 Mass. 316. Ball v. Allen, 216 Mass. 469. The fact that the defendants’ motion of October 10 for an extension of time for filing the report was allowed and the time extended to October 23, 1916, does not help(them; the report was settled October 6, and while exceptions need not, under the rule, be filed until fifteen days after the report is filed, the objections must be brought in within five days after the report is settled. This was not done and the extension of time for filing the report does not excuse the defendants.

We may add that we have considered all of the defendants’ exceptions. Even if the rule were complied with and the objections were seasonably delivered to the master, the exceptions show no error of law.

The defendants’ appeal from the decree brings before us the question whether the decree could be entered upon the facts found and stated in the master’s report. E. W. Burt & Co. Inc. v. Coes & Young Co. 212 Mass. 134. Ball v. Allen, ubi supra. The master found that the parties entered into a fraudulent agreement; that the total indebtedness of the plaintiff was $1,400; that the notes were “short term notes” and the mortgage was given for $5,000, payable in five years; that this was done to deceive and defraud the plaintiff’s creditors, and that the fraud was participated in by the parties.

The fraud referred to is not stated in the pleadings: the plaintiff does not rely on it, and the defendants do not allege it. The plaintiff was not obliged to show his own guilt in proving his case and he does not seek the aid of the court in the execution of the fraudulent scheme. In fact, the report does not show there was any direct evidence of this fraudulent purpose. The conclusion of the master may have rested entirely on inference drawn from all the facts in the case. Under these circumstances the court will not interfere of its own motion and deny the plaintiff the relief sought. See in this connection Stillings v. Turner, 153 Mass. 534; Pierce v. Le Monier, 172 Mass. 508; Lufkin v. Jakeman, 188 Mass. 528, 531, 532; Chafee v. Sprague Manuf. Co. 14 R. I. 168. See also Downey v. Charles S. Gove Co. 201 Mass. 251; O’Brien v. Shea, 208 Mass. 528.

Decree affirmed with costs.