282 Mass. 21 | Mass. | 1933
This proceeding was originally brought by bill in equity, filed May 10, 1929, to have the defendant declared to be holding property located at number 43 Abbott Street, Worcester, as trustee for the plaintiff. After hearing, the bill was amended into an action at law to recover the value of the property.
The action was referred to an auditor, whose findings of fact were to be final. He found the following facts: On November 4, 1909, the plaintiff, being fearful that she
Both parties filed motions for judgment on the auditor’s report. The trial judge denied the defendant’s motion,
The report of the auditor under an agreement that his findings of fact shall be final constitutes in effect a case stated, and procedure concerning it is governed by G. L. (Ter. Ed.) c. 231, § 126, providing that “any court before which such case shall come . . . shall be at liberty to draw from the facts and documents stated in the case any inferences of fact that might have been drawn therefrom at a trial . . . .” Merrimac Chemical Co. v. Moore, 279 Mass. 147, 152. It is manifest from the auditor’s report that the defendant had no right to impose a condition upon reconveyance of the property to the plaintiff. The auditor found that the Clarke mortgage was paid with money given to the plaintiff by her mother, and it is to be inferred that the defendant had nothing to do with such payment. Although the yearly requests of the plaintiff for a reconveyance were not complied with, the defendant on each occasion, except on May 1, 1918, expressed her willingness and intention to reconvey and thereby carry out her oral agreement. There were no circumstances to lead the plaintiff to believe she was required to resort to legal proceedings to enforce her rights. The defendant’s refusal on May 1, 1918, was not a repudiation of her legal obligation to reconvey the property. It was a recognition of that obligation to reconvey if the plaintiff would pay to her approximately the sum of $1,200, which the defendant contended the plaintiff owed — a contention founded upon a groundless claim. There was no absolute and unconditional repudiation by the defendant of her promise to reconvey. The auditor found that on March 17, 1928, the defendant unconditionally agreed to convey the property to the plaintiff. It follows that the statute of limitations did not begin to run until that date, and is not a bar to recovery. Ryder v. Loomis, 161 Mass. 161, 163. Cromwell v. Norton, 193 Mass. 291, 293. Fletcher v. Storer, 220 Mass. 245. Raine
Exceptions overruled.