Richardson v. Brown

260 Mass. 509 | Mass. | 1927

Wait, J.

The essential facts which must be considered in reaching the decision of this case are as follows: William A. Higgins, who was indebted to Arthur Brown, owned real estate in Middlesex County which, on March 27, 1922, he agreed to sell to Nellie A. Richardson. On May 8, 1922, he made a deed of the land to her which was intended to convey the entire fee but by mistake conveyed only three quarters undivided. He made a further deed to her of the remaining one quarter on November 16,1923, In March, 1922, Arthur Brown, intending to sue William A. Higgins, his debtor, brought suit against William F. Higgins and attached the real estate of William F. Higgins. There was no such person as William F. Higgins. Learning of his mistake, Brown, on May 27, 1924, amended his writ so that it ran against "William F. Higgins otherwise known as William A. Higgins,” and attached the real estate by special precept. Nellie A. Richardson received her deeds without notice of any attachment against land of William A. Higgins, and had, so far as appears, a perfect title against the world. Brown got judgment against Higgins on December 1, 1924, and on December 3, Tucker, a deputy sheriff, levied an execution issued on the judgment and began proceedings for a sale of the premises set for January 14, 1925, to satisfy the execution. The plaintiff wished to prevent any sale. She brought a bill in equity against Brown and Tucker, setting out the foregoing facts, alleging that her title was clouded and asked for a temporary and a permanent injunction against the sale. Her prayer for a temporary injunction was denied on January 13, 1925. Tucker insisted on proceeding with the sale pending the bill in equity; but accepted from her on January 14, 1925, the amount due on the execution with his costs. She protested that she was not paying the execution; that the attachment and the levy of execution were invalid against her and the sale wrongful; that she paid and only paid to prevent the sale; that she intended to go on with her bill in equity to determine the validity of attachment and levy and to recover the sum paid to prevent the sale. He, in fact, applied the money upon the execution, returned it to court satisfied, and paid over the amount received less his fees, to Brown, the judgment creditor. No fraud was practised upon her. Tucker insisted on a sale. He did not insist upon payment of the execution and costs by her, but he would not abandon his sale for a less sum. Her motive in preventing a salé does not appear. All the sheriff could have sold was the interest of William A. Higgins in the land. If he had no interest, the sale could not deprive the plaintiff of any title in the land. She could not be dispossessed at the suit of the purchaser. She was not obliged to do anything. She could remain quiet in possession of her land in confident assurance that no one could successfully assail her. After refusing to rely upon her legal position and her pending suit in equity to secure her against loss, she cannot recover what she paid to gratify her determination that no sale should take place. Such a payment is voluntary within the rules established by our decisions. There is no fraud, no mistake and no duress. Forbes v. Appleton, 5 Cush. 115. Benson v. Monroe, 7 Cush. 125, 131. Cook v. Boston, 9 Allen, 393. See also Preston v. Boston, 12 Pick. 7, 13.

It follows that the order for a decree must be reversed and a final decree be entered dismissing the bill with costs.

So ordered.