205 Mass. 350 | Mass. | 1910
The demurrer having been rightly overruled as the bill on its face stated a case for equitable relief, the question for decision is whether upon the master’s report, to which the plaintiffs have taken numerous exceptions, the decree dismissing the bill should be reversed.
By his will, Sewell F. Barker devised to his son, Charles H. Barker, a life estate with remainder to his other children, Mary E. Cary, Eliza J. Solis and Sewell F. Barker. The tenant for life having died, the plaintiffs Solis and Barker, in whom the remainder vested at the testator’s death, and the plaintiff Cary who claims title under a devise from his wife, Mary E. Cary, of her share, ask specifically that certain tax deeds, under which the defendant Jones claims the fee, be cancelled, with an accounting for rents and profits received while in possession.
The cancellation or discharge of invalid conveyances of record, which if allowed to stand cast doubt or uncertainty upon a title otherwise good, is a well recognized subject of equity jurisdiction. Rogers v. Nichols, 186 Mass. 440. Sawyer v. Cook, 188 Mass. 163, 170. The bill charges in the third and fourth paragraphs, that one Bailey, from whom Jones (who hereinafter will be called the defendant) purchased with knowledge of the fraudulent purpose, united with the life tenant and his wife in a scheme to permit the property to be sold for non-payment of taxes, in order that Bailey should buy at the sale for the purpose of depriving the plaintiffs of their remainder in the land. But upon evidence not reported, the master finds these allegations have not been proved, and, having become unimportant, they may be dismissed. The exceptions to his findings as to the necessitous condition of the life tenant and his family, which influenced Bailey to lend money to them from time to time for their support, and that to secure repayment of the loans he bid off the property at the first sale, are without merit and must be overruled. Where fraud is charged, the relation of the parties, their conduct and motives are admissible to explain the nature of the transaction which it is sought to impeach and set aside. In reference to the purchase by Bailey at the sale for the taxes of 1900, the master reports that it was orally “ arranged between Mr. and Mrs. Barker that he should purchase the property at the sale as security for his loans . . . which then amounted to $1,300. It was further agreed that when Mr. Bailey should have received from the rents of the property a sufficient amount to pay the indebtedness ... he should reconvey to Mrs. Barker.” No conveyance by the life tenant or those claiming under him was ever made to Bailey, and it was not until after receiving the collector’s deed that he entered into possession. The master having decided that before the time for redemption expired, either under this sale or subsequent sales for non-payment of taxes during his occupation, and where the grantees in the col
It follows from the master’s conclusions upon unreported
It appears from the report that the plaintiffs were nonresidents, and there is no finding as to when they first knew of the sale or sales by the collector. The duty of paying the assessments did not devolve upon them, and while the remaindermen knew of the poverty of their brother, they are not shown to have been actually informed that the taxes were in arrears, or in possession of any information which should have put them upon inquiry. If there was no actual intent to defraud, neglect to pay the taxes by the life tenant or those who by purchase succeeded to his interest, and their entering into an agreement whereby Bailey should acquire the property at a tax sale in payment of sums advanced to the life tenant, or to hold it as security until the loans were repaid and then to convey the premises to the life tenant or his wife, effectually destroyed the remainder and in law was a fraud upon the plaintiffs. Varney v. Stevens, 22 Maine, 331, 334. Burgess v. Robinson, 95 Maine, 120, 127. Cannon v. Barry, 59 Miss. 289. By Pub. Sts. c. 124, § 16, re-enacted in R. L. c. 185, § 1, an action of waste, if seasonably brought, could have been maintained against the life tenant, his wife and Bailey, to recover the estate with “ the amount of the damage.” Sackett v. Sackett, 8 Pick. 309. Stetson v. Day, 51 Maine, 434, 436. Padelford v. Padelford, 7 Pick. 152. The defendant has pleaded loches, but the report contains no finding that the plaintiffs have been negligent. Indeed the inference to be drawn from what the master says is that until the death of the life tenant in May. 1907, the title
The will under which the plaintiff Cary claims as devisee never having been admitted to ancillary probate, the defendant contends that he failed to establish his right to redeem. A will without probate does not pass title to lands, and its admission to probate in the foreign domicil of the testatrix, and nothing more, was not effectual to vest the plaintiff with her interest. Dublin v. Chadbourn, 16 Mass. 433. Campbell v. Sheldon, 13 Pick. 8. Campbell v. Wallace, 10 Gray, 162. Chase v. Chase, 2 Allen, 101, 104. But if, as to the real property in this Commonwealth, the will is a nullity by the law of the forum without ancillary probate, his rights may be determined as if she died intestate. By R. L. c. 140, § 3, whether children were born of the marriage, or they were childless, he takes an estate in fee either of his wife’s share or one third of it, and may redeem. The defendant, however, would not be aided even if the bill as to Cary were dismissed. It is settled that a tenant in common can redeem, although upon redemption the tax lien is kept alive for his benefit until his co-tenants pay their share of the redemption money. Hurley v. Hurley, 148 Mass. 444.
If ordinarily under these circumstances equitable relief should be decreed, the defendant’s answer avers that, suit not having been brought within the time allowed for redemption, the bill must be dismissed. Widersum v. Bender, 172 Mass. 436. O’Callaghan v. Lancy, 187 Mass. 474. The first sale occurred January 10,1902, and the bill was filed December 11, 1907, and not only had the period of two years expired under R. L. c. 13, § 58, but under § 75 permitting relief in equity if sought within five years from the date of sale the bill was filed too late. But if by St. 1905, c. 325, § 3, section 75 was amended and the period
So ordered.