Atkins v. Atkins

• Decision Date: 02 April 1907
• Citation: 195 Mass. 124,80 N.E. 806
• Parties: ATKINS v. ATKINS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

195 Mass. 124

80 N.E. 806

ATKINS v. ATKINS.

Supreme Judicial Court of Massachusetts, Suffolk.

April 2, 1907

COUNSEL

Brandeis, Dunbar & Nutter, Edward F. McClennen, and Harrison F. Lyman, for appellant.

Bert E Kemp, for appellee.

OPINION

BRALEY J.

The plaintiff as trustee under the will of Amasa Harmon held a mortgage with a power of sale on the land described in the bill, and the interest not having been paid, he not only took and held peaceable possession under Rev. Laws, c 187, § 1, which had continued for more than three years prior to the bringing of this suit, but a foreclosure under the power followed. In pursuance of a previous arrangement that the defendant should buy the property through an intermediary, it was sold to one Harriet A. Clark for a sum sufficient to cover the debt with interest and the expenses of sale. She subsequently, in accordance with the agreement, conveyed to the defendant, and the purchase price remaining unpaid the bill is brought to compel the performance of the contract, or if this is refused, then for alternative relief by a reconveyance. Corder v. Morgan, 18 Ves. 344. The mortgage contained a further provision, that the mortgagee might purchase, and while he was required to act in good faith for the protection of the mortgagor, and to see that his interests were not sacrificed, there is no finding by the master to whom the case was referred, either that the foreclosure was planned, and the sale conducted, for the purpose of enabling the wife of the trustee to buy without competition from other bidders, or that the price was inadequate. Nor is the plaintiff estopped by the recitals in the affidavit, as the defendant argues, from showing the true condition of the title. Under Rev. Laws, c. 187, § 15, as amended by St. 1906, p. 182, c. 219, § 2, the office of the affidavit is to furnish evidence that the power of sale has been duly executed. This provision is only directory, and the title vests in the purchaser even without an affidavit being made or recorded. Field v. Gooding, 106 Mass. 310, 312. If, however, it is made and filed, these recitals being in the nature of evidence only, are not conclusive, and may be controverted in suits concerning the validity of the foreclosure. Da Silva v. Turner, 166 Mass. 407, 412, 44 N.E. 532. In these proceedings he acted under the power as the attorney for the mortgagor, from whom instead of from him the defendant's title is derived, even if the transfer was made through an intermediary who took merely a dry title. Raymond v. Commonwealth, 192 Mass. 486, 78 N.E. 514; Brown v. Brown, 174 Mass. 197, 54 N.E. 532, 75 Am. St. Rep. 292. The deed to the defendant, who must be regarded as the actual purchaser, has never been manually delivered to her, or recorded, and ordinarily until payment, the purchaser at a mortgagee's sale is not entitled to a conveyance. But the master finds that upon the face of the deeds the title has passed, and she is seised in fee. The evidence not having been reported, this finding being sustained by the fact which he states is conclusive, as 'it is settled that manual delivery of the instrument is not required to work a transfer, for acts of the grantee showing acceptance, when coupled with the purpose of the grantor to treat the deed as delivered are sufficient to pass the title.' Creeden v. Mahoney, 193 Mass. 402, 79, N.E. 776. The parties, however, are husband and wife, and all the arrangements for the sale and transfer of the property were made by him acting in the two-fold capacity of trustee, and as her duly authorized agent. The provisions of Rev. Laws, c. 74, § 1, cl. 4, not having been pleaded, and it being conceded that no action could be maintained at common law by reason of the disability of coverture, this part of the case is narrowed to the simple inquiry whether in equity, where this defense is interposed, upon proof that the title passed, the plaintiff can compel payment of the purchase price. In Nolin v. Pearson, 191 Mass. 283, 77 N.E. 890, 4 L. R. A. (N. S.) 643, it was pointed out that by remedial legislation although a married woman in this jurisdiction had been freed from nearly all of the legal conditions arising from the doctrine of the common law of the unity of husband and wife, contracts, and suits between them, were still prohibited. Rev. Laws, c. 153, §§ 2, 6. By our decisions it is settled, that such contracts are absolutely void, and unenforceable, between the spouses, or by strangers into whose hands they may come by transfer. Edgerly v. Whalan, 106 Mass. 307; Bassett v. Bassett, 112 Mass. 99; Whitney v. Closson, 138 Mass. 49, 51, 52; Bridgman v. Bridgman, 138 Mass. 58; Kneil v. Egleston, 140 Mass. 202, 4 N.E. 573; Bowker v. Bradford, 140 Mass. 521, 523, 5 N.E. 480; Silverman v. Silverman, 140 Mass. 560, 562, 5 N.E. 639; Chapin v. Chapin, 135 Mass. 393; Roby v. Phelon, 118 Mass. 541; Woodward v. Spurr, 141 Mass. 283, 6 N.E. 521; Bailey v. Herrick, 141 Mass. 287, note; National Granite Bank v. Whicher, 173 Mass. 517, 53 N.E. 1004, 73 Am. St. Rep. 317; National Granite Bank v. Tyndale, 176 Mass. 547, 57 N.E. 1022, 51 L. R. A. 447; National Bank of the Republic v. Delano, 185 Mass. 424, 70 N.E. 444; Caldwell v. Nash, 190 Mass. 507, 508, 77 N.E. 515. This doctrine is not disputed by the plaintiff, but he relies upon an exception that in equity, coverture does not prevent suits between them relating to their rights in property conveyed, or transferred by one spouse to the other, from being entertained, and suitable relief decreed. Ayer v. Ayer, 16 Pick. 327; Scott v. Rand, 115 Mass. 104; Lombard v. Morse, 155 Mass. 136, 29 N.E. 205, 14 L. R. A. 273; Frankel v. Frankel, 173 Mass. 214, 53 N.E. 398, 73 Am. St. Rep. 266; Cogswell v. Hall, 185 Mass. 455, 457, 70 N.E. 461; Browne v. Bixby, 190 Mass. 69, 76 N.E. 454. See Price v. Fitzgibbon, 17 Ch. Div. 454. But this branch of the plaintiff's case rests on the executory contract made between them, which is a mere nullity, and not on the basis of recovering property fraudulently obtained from one spouse, by the other after marriage, which in equity should be returned or reconveyed, nor on loans made to the husband from the separate estate of the wife, which he promises to repay. Rev. Laws, c. 153, § 2; Bassett v. Bassett, ubi supra; Erringdale v. Riggs, 148 Ill. 403, 412, 36 N.E. 93; 2 Story, Eq. Jur. (13th Ed.) § 1372; Atlantic National Bank v. Tavener, 130 Mass. 407, 409; Holmes v. Winchester, 133 Mass. 140, 141; Lombard v. Morse, ubi supra; Hunt v. Johnson, 44 N.Y. 27, 4 Am. Rep. 631. The fact that he was acting in a representative capacity creates no exception, for he was none the less her husband because he happened at the same time to be trustee for a stranger. Tyler v. Sanborn, 128 Ill. 136, 144, 21 N.E. 193, 4 L. R. A. 218, 15 Am. St. Rep. 97. It is the assumption after marriage, of relations dependent upon executory contract, which it is the policy of our law to prohibit, and if she failed to perform the verbal contract of purchase, upon a suit to compel performance and recover the consideration, it is still a suit between husband and wife, and not between strangers. Whitney v. Closson, ubi supra. It was said without qualification in Wilson v. Bryant, 134 Mass. 291, 300, that neither in law nor in equity can a married woman enforce a note held by her against her husband, even if it was originally made payable to another person who transferred it to her. So in Fowle v. Torrey, 135 Mass. 87, where a married woman brought a bill in equity against a partnership of which her husband was a member, to recover upon a promissory note given by the firm to her for money lent, after consideration by the whole court, it was held by a majority that the suit could not be maintained even against the other members. These decisions have been followed, or approved, in recent cases. Bristol County Savings Bank v. Woodward, 137 Mass. 412, 417; Franklin County National Bank v. First National Bank of Greenfield, 138 Mass. 515, 523; Washburn v. Tisdale, 143 Mass. 376, 378, 9 N.E. 741; Merchants' National Bank v. Greene, 150 Mass. 317, 320, 23 N.E. 103; Beacon Trust Co. v. Robbins, 173 Mass. 261, 272, 53 N.E. 868; Hale v. Leatherbee, 175 Mass. 547, 553, 554, 56 N.E. 562; Porter v. Wakefield, 146 Mass. 25, 27, 14 N.E. 792; Clark v. Patterson, 158 Mass. 388, 391, 33 N.E. 589; Clark v. Royal Arcanum, 176 Mass. 468, 471, 57 N.E. 787. The contractual rights of the husband if conceded to be equal, certainly are no greater, and this disability which attaches to her, also attaches to him. See Butler v. Butler, 14 Q. B. D. 831, 834. The plaintiff's right of recovery on this ground cannot be distinguished in principle from these cases, for if he held the promissory note of his wife for the balance due, which he was seeking to enforce, they are decisive that such a suit cannot be maintained. If these restrictions of the common law as to freedom of contract and suits between themselves are to be removed as they have been in England by the married woman's property act of 1882 (St. 45 & 46 Vict. c. 75), as amended by the married woman's property act of 1893 (St. 56 & 57 Vict. c. 63), their removal must be accomplished by act of the Legislature. The defendant's sixth exception, which relates to her liability under the contract must be sustained, and the remaining exceptions taken by her either having been expressly waived, or not argued, are overruled.

But if the action so far as it rests upon the contract is defeated the master finds that the plaintiff is entitled to a reconveyance, and it is perfectly plain that unless equitable relief in some form can be granted, the plaintiff is remediless. Upon this question the marital relation does not prevent the maintenance of the bill. ...