319 Mass. 354 | Mass. | 1946
The plaintiff recovered judgment against the defendants Sadie Green and Morris Green, who are husband and wife, for a balance due on notes for money lent. Thereafter the plaintiff instituted supplementary proceedings against both defendants in the Municipal Court of the Dorchester District of the City of Boston. G. L. (Ter. Ed.) c. 224, § 14. Pending those proceedings she alleged as to each defendant “charges that since the debt was contracted or the cause of action accrued, the defendant or debtor has fraudulently conveyed, concealed or otherwise disposed of the whole or part of his property with intent to secure it to his own use or to defraud his creditors in that certain parcels of real estate were transferred without adequate consideration.” G. L. (Ter. Ed.) c. 224, § 19, First. A special justice of the Municipal Court found the defendants not guilty. The plaintiff appealed to the Superior Court, where the defendants filed motions to dismiss for lack of jurisdiction. A judge denied the motions, and the defendants claimed exceptions. The case was tried before another judge, and the motions to dismiss were renewed and denied. The judge refused a request of each defendant for a ruling that upon the evidence there should be a finding of not guilty, and found the defendants guilty. The defendants excepted.
1. We first consider the motions to dismiss. The governing statute provides: “A party aggrieved by a judgment . . . may appeal therefrom to the superior court in the same manner as from a judgment of a district court in civil actions. If the plaintiff or creditor appeals, he shall before allowance thereof recognize, with sufficient sureties to enter and prosecute his appeal, to file therewith a copy of all the
The docket in the Municipal Court showed the following: “December 16, 1943 Hearing finished D. A. Rose, Special Justice. Debtor Sadie Green found Not Guilty. Debtor Morris Green found Not Guilty. Appeal of Creditor as to Sadie Green filed. Appeal of Creditor as to Morris Green filed. $100 — January term. Creditor recognizes with Dora Tatelman and Anna Baker as sureties.” Even if no formal entry was made, these entries might be considered as constituting the record itself. Warburton v. Gourse, 193 Mass. 203, 205-206.
We are not called upon, however, to decide any question upon the docket entries alone, because the printed record in this court also contains what is entitled, “Extended memorandum of recognizance for judgment debtor [sic], on appeal from finding of guilty [sic], to Superior Court under G. L. Chap. 224, as amended by Chap. 334 Acts of 1927.” This document bears the caption of the Municipal Court of the Dorchester District and reads: “On this sixteenth day of December in the year of our Lord nineteen hundred and forty-three, personally appeared before the said Court . . . Sarah M. Toy the judgment debtor [sic] named in a writ of execution bearing date the fifth day of April A. D. 1941 . . . upon a judgment which Sarah M. Toy . . . recovered against the judgment debtors . . . ; and whereas supplementary proceedings were begun on said judgment, and are now pending, and Dora Tatelman and Anna Baker being personally present examined on oath and being deemed sufficient are accepted as sureties and thereupon,
We cannot accept the contention of the defendants that the foregoing paper was not the record of the proceedings in the Municipal Court. “The character of a pleading or other paper put upon the files of the court must be determined from its essential substance and not from the title, name or description attached to it.” E. S. Parks Shellac Co. v. Jones, 265 Mass. 108, 110. Universal Adjustment Corp. v. Midland Bank, Ltd. 281 Mass. 303, 328. Here the statute (G. L. [Ter. Ed.] c. 224, § 19) contemplated that the substance of the contents of the paper should be available in the Superior Court in the event of appeal.
At the hearing on the motions to dismiss, the defendants called as witnesses Dora Tatelman; the special justice who
The judge was correct in ruling that paroi evidence could not serve to contradict the record of the proceedings in the Municipal Court. “No principle is more firmly established than that which excludes oral testimony when offered to vary or contradict written judicial records. The record of a court of competent jurisdiction imports incontrovertible verity, as to all the proceedings which it sets forth as having taken place, and is of so high a nature that no averment can be made against it.” Wells v. Stevens, 2 Gray, 115, 117. Bryer v. American Surety Co. 285 Mass. 336, 337, and cases cited. We think that the defendants could not be heard to say that the plaintiff did not recognize with sufficient sureties, or that separate recognizances should have been given by the plaintiff to each defendant. There is nothing in the statute which invalidates one recognizance given jointly and severally to two defendants. Enough appears of record to show that the statutory requirements were fully met.
There is nothing in the defendants’ argument based upon an alleged failure to file “a copy of all the proceedings.” The filing of such copies is made merely a term of the recognizance and is not a condition precedent to jurisdiction in the Superior Court. G. L. (Ter. Ed.) c. 224, § 19.
2. We next consider the denial of the requests that there
The judge could have found these facts. In 1937 the plaintiff lent $2,000 to the defendants, receiving promissory notes on which a balance,of $1,600 was unpaid. While negotiating the loan in their house on Adams Street, Dorchester, the defendants told the plaintiff that they could make repayment because they had real estate on Seaver Street, Roxbury, on Commonwealth Avenue, Boston, and in South Boston, in which there was an equity of $100,000 and from which they had “a big income,” “a big collection every month”; and that the real estate belonged to the defendant Morris Green but stood of record in the name of the defendant Sadie Green. In 1939 the defendant Sadie Green without consideration conveyed the real estate to Parkview Realty Corporation by deeds in which the defendant Morris Green joined to release “all rights of tenancy by the curtesy and other interests therein”. Parkview was incorporated in 1939 with one hundred shares of capital stock, of which ninety-eight shares were owned by Samuel Green (but stood in the name of one Rose Bukoff) and one share each by William Green and Arthur Green, all sons of the defendant Morris Green and stepsons of the defendant Sadie Green. The shares had been paid for as follows: ninety-five shares for equities in real estate at 180-184 Seaver Street, and 213 and 233 Commonwealth Avenue; one share for machinery; and four shares for equipment. William Green was president, and Arthur Green treasurer. Samuel Green formerly was an officer and director. Neither defendant at any time apparently held any
Certain testimony of Barney Meshon, a former business associate of the defendant Morris Green, was admitted in evidence against that defendant only. In 1940 Meshon asked the defendant Morris Green, “Why don’t you do right and pay the poor woman?” and received the reply, “I will never pay because that property don’t belong to me. I gave it to my wife.” Later in 1940 Meshon asked, “Is that the way to do? There is a poor woman. Give her the $2,000. Why don’t you pay the poor woman?” To this the defendant Morris Green responded, ‘ ‘ She will never get it. I transferred to my wife the property and some of it to the Parkview.” The real estate was already in the name of • the wife at the time of the loan, and the charge of fraud is confined to the period “since the debt was contracted or the cause of action accrued.” The transfer to Parkview is the only one here pertinent.
Fraud, which is generally a question of fact, is never presumed but must be proved by the party who relies upon it. Barron v. International Trust Co. 184 Mass. 440, 443. Brown v. Little, Brown & Co. (Inc.) 269 Mass. 102, 117. Kerrigan v. Fortunato, 304 Mass. 617, 620. Mason v. Wylde, 308 Mass. 268, 282-283. This rule applies where a conveyance is without consideration. “A voluntary conveyance is not per se fraudulent as against creditors. No doubt, such a conveyance by a person who was deeply in debt, especially of a large and substantial portion of his estate, would be very strong evidence of a fraudulent intent. But such deed is not necessarily void. Whether it be so or not is a question of fact, to be determined on all the circumstances connected with the making of the grant, tending to show that it would have the effect of impairing the rights of creditors. But it would be quite essential to show that the grantor was in
Apart from the Meshon testimony, there was no evidence of fraud against either defendant. It did not appear as of the time the real estate was conveyed to Parkview what were the obligations of the defendant Sadie Green or whether she had other assets, much less that she was deeply in debt or insolvent. The finding of guilty against the defendant Sadie Green, therefore, cannot stand. We think, however, that, while meager, the statements which, the judge could find, the defendant Morris Green made to Meshon permitted the inference that his conveyance of the real estate to Parkview, while the notes to the plaintiff were outstanding, left him indebted beyond his probable means of payment. The contention that the conveyance was that of the wife and not of the husband is not sound. The defendant Morris Green joined in the execution of the deeds, an essential act in transferring good marketable title. The judge could have found that the defendant Morris Green was the sole beneficial owner of the real estate. By the deeds he released “all rights of tenancy by the curtesy and other interests therein.” The finding of guilty as to him must stand.
It follows that the exceptions of both defendants as to the rulings on their motions to dismiss for lack of jurisdiction are overruled, and that as to the denial of the requests for a finding of not guilty the exceptions of the defendant Morris Green are overruled and those of the defendant Sadie Green are sustained.
So ordered.
