Walker v. Walker, 101 Mass. 169

Walker v. Walker

101 Mass. 169 | Mass. | 1869

Ames, J.

There can no doubt that the sale made by the defendant was one by which the wards were not bound. In their *172favor and at their election it was voidable; but being voidable only, and not void, it so far took effect that an estate passed to the grantee by the conveyance, subject to be defeated by such of the wards as should see fit to exercise the right to disaffirm the conveyance. The mortgagee, being a bond fide purchaser without notice of any defect in his security, holds by a good title to the extent of the mortgage, even as against the wards. Robbins v. Bates, 4 Cush. 104. But, subject to the rights of the mortgagee, the plaintiff is entitled to hold one undivided third of the property. The policy of the law, for very obvious reasons, forbids guardians to be purchasers of the property of their wards, and this rule is entirely independent of the question whether any actual fraud was committed or intended in the purchase. It would avail nothing to show that the actual transaction was a good one, and that the price was a better one than could otherwise have been obtained. The facts which the defendant offered to prove would not, if proved, have remedied the incurable defect in the sale, namely, that it was substantially a sale by herself as guardian, to herself in her personal right.

But on his disaffirmance of the sale, the plaintiff, to the extent of his undivided third, remits her to all the rights which she would have if there had been no sale. As against him, she becomes entitled to her dower. He cannot say that by giving a deed which, as against him, has no binding force, she has merged her dower in the fee. He cannot repudiate the deed for his own benefit, and at the same time treat it as valid for the purpose of inflicting a disadvantage and loss upon her. There can be no merger of her dower except by the acquisition of a larger and more comprehensive title in the same premises, and that acquisition he prevents her from making, by disaffirming the conveyance. On this point the cases cited are quite decisive. Stinson v. Sumner, 9 Mass. 143. Robinson v. Bates, 3 Met. 40.

The result then is, that the plaintiff is entitled to a conveyance of one undivided third part of the estate, subject with the other two thirds to the mortgage and to the defendant’s dower. He is also entitled to one third part of the rents and profits subject to the deduction of all just and proper charges and ex *173penses on her part for his education and maintenance during his minority, and subject to the further deduction of one third part of all the expenses of insurance, taxes, repairs, interest paid on the mortgage, and the incidental expenses of the care and management of the property. Her account as guardian is to be settled in the court of probate. And a master is to prepare the conveyance, set out her dower, audit the accounts, and report to the court thereon. Decree accordingly.