Murray v. Murray, 227 Mass. 345

Murray v. Murray

227 Mass. 345 | Mass. | 1917

Loring, J.

In March, 1915, the plaintiff filed her bill of complaint against the defendant John B. Murray alleging that she was the owner of a parcel of land therein described in the city of Everett and that in the previous August the defendant Murray (her stepson) presented to her a deed conveying said land to him and induced her to sign it by representing to her “that it was an instrument . . . which had reference to the settlement of the estate of her deceased husband,” and that relying upon that representation she executed the deed. The relief asked for was a reconveyance of the land. The case was heard on the merits. The judge made a finding that the plaintiff did execute the deed relying upon the false representation stated above and made an order for a reconveyance.

*348This finding and order for a decree were made in June, 1915. In March, 1916, the plaintiff was allowed to amend her bill of complaint. In this amendment she alleged that since the order for a decree the city of Everett had taken the land in question for a playground and she prayed (as part of the amendment) that the city of Everett might be made a party defendant and for further relief. Thereafter the city of Everett appeared and filed an answer. In its answer it admitted the taking of the land, alleged that it was ready at all times to pay the award made under said talcing “to the legal owners of said property, when they can be' ascertained” and further alleged that since the bringing of the bill, a petition has been brought by the defendant Murray alleging that he was the owner of said property and praying that damages be assessed and a jury trial be had to fix the amount in which he, the defendant Murray, had been damaged. This answer was filed on April 4,1916. On the same day the plaintiff filed a replication. Thereafter in June, 1916, a final decree was entered which is set forth above. From this decree the defendant Murray took the appeal which is now before us. No appeal was taken by plaintiff nor by the defendant city.

The defendant Murray has made three contentions in support of his appeal.

. 1. His first contention is that the decree is too broad. In this contention he is right. On a bill to set aside a conveyance procured by fraud a court of equity has no right to declare the conveyance' void. It has a right to declare that it is voidable, that it has been avoided and to direct the grantee in the deed of conveyance to reconvey the premises to the plaintiff. Russell v. Burke, 180 Mass. 543. It follows that the following words must be stricken from the decree, namely: “that the said deed was and is absolutely null and void and of no effect, and the same is hereby cancelled; that the said defendant, John B. Murray, took no estate in the said premises described in said deed and no title thereunder; that .the said plaintiff is, was, and remained the owner of the right, title, and the interest in said premises, and so remained at the time of the said taking of the same by the said defendant, the city of Everett, free from all claims of the said defendant, John B. Murray, and any and all persons, claiming from, by, or under him.”

*3492. But it is enough to entitle the plaintiff to relief in the case at bar that she is entitled in equity to the compensation due for the taking of the land. By bringing the bill here in question the plaintiff elected to avoid the deed and became in equity entitled to the land. When the land was taken for a playground the plaintiff became entitled in equity to the compensation due by reason of that taking. See in that connection Glazier v. Everett, 224 Mass. 184. It follows that the plaintiff is now entitled to the fund and so much of the decree as directs the city to pay it to her must be affirmed. A recital of the plaintiff’s equitable rights as just stated may be inserted in the decree.

3. The defendant Murray’s second contention is that under Rule 25 of the Superior Court he was entitled to notice of the motion to amend. That is not so. The motion to amend did not affect his rights. It was made after it had been determined that in equity he was not the owner of the land.

4. The defendant Murray’s third contention is that by the replication filed by the plaintiff to the answer of the city of Everett an issue of fact was raised which called for trial and so far as appears no trial was had. But the defendant Murray was not interested in the trial of that issue. He cannot complain of the fact that the plaintiff and the defendant city chose to have a decree entered without a trial upon an issue raised by the pleadings in which they alone were interested.

5. Since the plaintiff took no appeal it must be taken that the plaintiff is content to take the damages assessed by the city and does not wish to have them passed upon by a jury. For that reason no assignment need be made of the right to collect the compensation due by reason of the taking as was decreed to be done in Glazier v. Everett, ubi supra.

6. By the terms of the original decree it is provided: “that the plaintiff recover her costs to be taxed as in an action at law, and have execution therefor.” We interpret this to mean that the plaintiff is to recover her costs from the defendant Murray. The decree should be modified to make this plain.

7. The costs should be taxed and the amount stated in the decree. East Tennessee Land Co. v. Leeson, 185 Mass. 4.

8. The plaintiff is entitled to the costs of this appeal.

Decree accordingly.