297 Mass. 314 | Mass. | 1937
The plaintiff is the assignee of a judgment against the defendant Parad. The present bill is brought against Parad and also against one Fishbon and The Holy Greek Orthodox Church of St. John the Baptist, hereinafter called the Church, and others for the principal purpose of reaching and applying to the payment of the judgment a promissory note given by the Church to one Polisner and by him transferred to Parad. It is alleged that Parad in turn transferred this note to Fishbon in fraud of the plaintiff.
At a hearing on the merits the judge found these facts: The Church had given the note to Polisner in part payment for a heating system which Polisner and Parad had contracted to install in the church building "as a partnership undertaking.” When the work was substantially
After this hearing, Polisner was allowed to intervene for the purpose of protecting his interest in the note under his agreement with Parad, and the Church was permitted to amend its answer by setting up a counterclaim for damages for alleged improper work in installing the heating plant. Upon the issues thus raised a further hearing was had before a second judge, who found that Polisner was entitled to the sum of $700 as set out in his petition to intervene and that the Church was entitled to damages in the sum of $300. Thereafter a final decree was entered declaring the transfer of the note from Parad to Fishbon fraudulent, commanding Fishbon to deliver the note to the plaintiff to be held by the plaintiff with its proceeds in trust to pay the $700 to Polisner, to pay itself the amount of its judgment, to pay $300 to the Church and to pay any balance to the defendant Parad. The proceedings are somewhat complicated, and the foregoing is intended only as a general outline.
At various interlocutory stages of the case the defendants Parad and Fishbon filed exceptions to orders of the court, which in their brief they ask to. have treated as appeals. The record does not disclose that any bill of exceptions was ever filed or allowed. The mere claim of an exception is of no avail. Sullivan v. Roche, 257 Mass. 166, 170. Ledoux v. Lariviere, 261 Mass. 242, 244. It is wholly different from an appeal and cannot be treated as such. Compare G. L. (Ter. Ed.) c. 231, §§ 113-115, with G. L. (Ter. Ed.) c. 214, § 26. This is not a case where exceptions taken at the hearing are brought up by an appeal with a report of the evidence. See G. L. (Ter. Ed.) c. 214, § 25. The record as
There is nothing to show that the denial of jury issues has erroneously affected the final decree. It cannot be assumed that a jury would have found facts different from those which have been found by the judge. This question is not now open. See Canning’s Case, 283 Mass. 196, 199. If the order allowing Polisner to intervene affects the final decree to the extent that the decree gives relief to him, yet no error is shown in allowing him to intervene. Although commonly a statutory bill to reach and apply is pursued for the sole benefit of the creditor who brings it and not for the benefit of other creditors (Chapman v. Banker & Tradesman Publishing Co. 128 Mass. 478; McCarthy v. Rogers, 295 Mass. 245, 246-247, and cases cited), there is no reason why, on general principles, a third person claiming a title or interest in the very fund or property sought to be reached may not be allowed to become a party for the purpose of asserting or defending his own property right. Such a person is in a position similar to that of an adverse claimant in trustee process. See G. L. (Ter. Ed.) c. 246, §§ 33, 34; Check v. Kaplan, 280 Mass. 170, 177. The judge who first heard the case on the merits did not prejudge or unduly limit the issue as to what was due to Polisner out of the proceeds of the note. In substance that whole matter was left
On the appeals of Parad and Fishbon from the final decree, as the evidence is not reported, and the findings of fact are not inconsistent with each other, the only remaining questions open are whether the decree is consistent with the pleadings and the facts found. Ledoux v. Lariviere, 261 Mass. 242, 244. Plumer v. Houghton & Dutton Co. 277 Mass. 209, 215. Carter v. Sullivan, 281 Mass. 217, 220. The first hearing established, as between the plaintiff and the appellants, that Parad, the plaintiff’s debtor, had acquired the note from Polisner subject to a trust for Polisner’s benefit for whatever sum had been agreed upon between them. Am. Law Inst. Restatement: Contracts, § 156, Comment a (1), b; Trusts, § 16, Comment c. The nature .and extent of the interest of Parad, and therefore of Farad’s fraudulent grantee, Fishbon, in the property sought to be reached was a proper subject of inquiry at that hearing. Delval v. Gagnon, 213 Mass. 203, 206. The second hearing established as to all parties the amount of Polisner’s interest in the proceeds of the note. In the absence of the evidence we cannot say either that the statute of frauds was a bar to Polisner’s claim or that the effect of his indorsement of the note precluded him for recovery under the so called paroi evidence rule. Polisner’s intervening petition seems to us broad enough to support the decree in his favor. Requests for rulings as such have no standing in an equity appeal. Estey v. Gardner, 291 Mass. 303, 308. Stoneham Five Cents Savings Bank v. Johnson, 295 Mass. 390, 393.
That part of the final decree which places the note and its proceeds in the hands of the plaintiff in trust to pay the sums respectively due to the several parties interested is unusual and is not to be taken as a precedent. The court does not commonly hand over property which is the subject of a suit to one of the parties to collect and distribute. It ordinarily accomplishes its purpose through a sale by a com
The final decree must be modified, however, by directing the plaintiff to pay over any balance left in its hands to Fishbon instead of to Parad. The transfer of the note from Parad to Fishbon, though fraudulent as to the plaintiff, was valid as between the immediate parties. Harvey v. Varney, 98 Mass. 118. Service Mortgage Corp. v. Welson, 293 Mass. 410, 413.
There was no error in refusing to allow any exhibits to be included in the record to be transmitted to this court unless the entire oral evidence should be included. Romanausky v. Skutulas, 258 Mass. 190, 194.
We have considered all arguments addressed to us. As modified, the final decree is affirmed with costs of this appeal.
• Ordered accordingly.
