Barche v. Shea

• Decision Date: 31 January 1957
• Citation: 335 Mass. 367,140 N.E.2d 305
• Parties: Peter P. BARCHE v. Mildred T. SHEA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 305

140 N.E.2d 305

335 Mass. 367

Peter P. BARCHE v. Mildred T. SHEA.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Nov. 9, 1956.

Decided Jan. 31, 1957.

Vincent A. Canavan, Revere, Joseph J. Nissenbaum, Somerville, for plaintiff.

Jean E. deValpine, Boston, for defendant.

Before WILKINS, C. J., and RONAN, COUNIHAN, WHITTEMORE and CUTTER, JJ.

CUTTER, Justice.

This is a bill in equity by which the plaintiff seeks to establish an interest in a three family house and lot in Somerville as against his former wife, the defendant (now Mrs. Shea), who holds legal title to this real estate. The trial judge made extended findings and an order, pursuant to which a final decree was entered that Mrs. Shea holds the real estate 'upon trust, subject to a one-half equitable interest in the plaintiff,' and providing three appropriate methods by which the plaintiff could be assured his one-half interest. The case is here upon the defendant's appeal. The evidence is not reported.

In December, 1947, the plaintiff and the defendant, then husband and wife, sold some property, not involved in the present case, owned by them as tenants by the entirety and realized net proceeds of $4,400. One half of the proceeds was divided finally between the spouses. The second half of the proceeds was turned over to the wife to be deposited in a bank, for later application, in the interest of both spouses, toward purchase of another house. In November, 1949, they purchased, as tenants by the entirety, the three family house here involved, paying $2,900 net above mortgages, of which $2,200 came from the bank account just mentioned and $700 was paid in cash by the plaintiff.

In August, 1951, the couple were having marital difficulties and divorce proceedings were contemplated. On November 5, 1951, the plaintiff obtained a decree of divorce nisi. The couple feared unnecessarily, ¹ that complications would arise affecting the house in the event of a divorce. Accordingly, after consulting an attorney in November, 1951, they decided to put 'title in someone as a straw.' They thereupon, without consideration, executed a deed fo the premises to their twenty year old son, then in Korea as a member of the Air Force, 'as a mere convenience or straw,' intending no gift to him, but regarding 'their interests * * * as remaining the same' to be separated in some manner after the divorce should become final. No physical delivery of the deed to the son ever took place at any time and no express acceptance of a trust by him was possible at the time of the deed. The deed was kept by the wife after it had been recorded by the grantors. The son was told of the deed by his mother in May or June, 1952, about the time the divorce became final and several months after the son's return from Korea.

The son, who was living with his mother, the defendant, on August 2, 1952, was persuaded, after at least one earlier attempt on her part, to give to his mother a deed of the property. She then concealed from her son that, in disregard of the Massachusetts statutory prohibition against remarriage ² for two years, she proposed shortly to marry in New Hampshire one Shea to whom she was then engaged. The plaintiff did not know of the deed, which was promptly recorded. The defendant very shortly thereafter married Shea. On August 23, 1952, after learning of the marriage, the son at the request of the plaintiff, his father, and without informing his mother, the defendant, also gave to his father a deed of the three family house. The son did not tell the plaintiff about the prior deed to the defendant. The father then married the defendant's sister.

The trial judge found that both deeds were obtained from the son under circumstances which in equity ought not to be countenanced, that neither party ought to obtain advantage from the deeds, and that the respective interests in the property of the spouses were one half in each.

The trial judge's ultimate findings and conclusions were warranted by his subsidiary findings. At the outset, the parties owned the three family house as tenants by the entirety, the plaintiff having contributed at least half of the purchase price. It could have been found, indeed, that the plaintiff had contributed at least $700 more than half of the consideration for the new house, but since he has not appealed, he is not entitled to a more favorable decree. See Greenaway's Case, 319 Mass. 121, 122, 65 N.E.2d 16. The transfer of the house to the son contemplated that the beneficial interests in the house were to remain the same half interests as before. Although, because of the son's absence in Korea at the time of the conveyance, there was then no express promise or oral or written declaration of trust by the son, the subsidiary findings show that, after he learned of the conveyance, he never asserted that he had any beneficial interest in the property; that he apparently recognized that he never was intended to have any such interest; and that his attitude toward the property was one of practically supine acquiescence in the plans and wishes of his parents, or of whichever one of them happened to be nearer to him at the moment.

He was at most a straw or nominee, Collins v. Curtin, 325 Mass. 123, 125, 89 N.E.2d 211, holding a naked record title for the benefit of his parents.

Under all the circumstances relating to the deed to the parties' son (when viewed as a whole and as part of a single transaction), it can be concluded that the son held the record title subject to a trust in favor of each grantor the extent of a one-half interest, and way wholly prepared to recognize a fiduciary obligation to deal with the record title as his parents might direct. Abalan v. Avalan, 329 Mass. 182, 183-184, 107 N.E.2d 302 (silent acquiescence of a grantee in an arrangement for reconveyance was held to give rise to a trust for the grantors, where, as here,...