O'Brien v. McSherry, 222 Mass. 147

O'Brien v. McSherry

222 Mass. 147 | Mass. | 1915

Pierce, J.

The dealer’s bill of sale operated to transfer a valid title to the piano to the plaintiff although the only consideration therefor moved from the husband. Brown v. Brown, 174 Mass. 197, 199. She left the house of her husband in 1900, and during the same year the Probate Court decreed to her separate support. Thereupon she made a written demand upon her husband for the piano, but he refused to deliver it up to her. She was rightly advised that no action at law would lie against her husband, and the case at bar does not require us to consider what remedies, if any, equity afforded.

The piano remained in the house of the husband until his death in 1913, and up to the time of the trial of this action. On February 16, 1905, the husband conveyed by bill of sale to his daughter, then unmarried, all his personal property upon the premises where he and she lived, enumerating the piano among the chattels conveyed. The daughter allowed the articles to remain and did not remove the piano when after her marriage, which was celebrated nine months before her father’s death, she went to live in Holyoke, “because the piano was too large for her home there.” At the time of the conveyance she knew of the plaintiff's claim and of her demand for the piano; and she took the bill of sale intending to assert ownership and to do whatever her father wished with the property conveyed.

These acts were without legal justification and were in denial of the plaintiff’s right to immediate possession, and a right of action then accrued to the plaintiff without demand and refusal. Riley v. Boston Water Power Co. 11 Cush. 11. Parker v. Young, 188 Mass. 600, 605. Ames, Cases on Torts, (3d ed.) 297, 298, note.

The answer sets up the statute of limitations, and to this answer the plaintiff replies that the defendant fraudulently concealed the cause of action from her knowledge. R. L. c. 202, § 11. *150There is no testimony to justify a finding of actual fraudulent concealment of the transfer *of title, and it is well settled in this Commonwealth that mere silence of the defendant or his failure to inform the plaintiff of the facts upon which the cause of action hangs is not such a fraudulent concealment as is contemplated by the statute. Farnam v. Brooks, 9 Pick. 212, 214. Sturgis v. Preston, 134 Mass. 372. Adams v. Ipswich, 116 Mass. 570. Nudd v. Hamblin, 8 Allen, 130.

Positive acts of actual and not merely constructive concealment characterize and distinguish the cases, First Massachusetts Turnpike Corp. v. Field, 3 Mass. 201, and Manufacturers’ National Bank v. Perry, 144 Mass. 313, from the case at bar.

It follows that the defendant’s request that upon all the testimony .the plaintiff cannot recover should have been given.

Exceptions sustained.