Burke v. Dorey

Decision Date28 February 1911
Citation208 Mass. 45,94 N.E. 291
PartiesBURKE v. DOREY et al.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
COUNSEL

Whittlesey & Wales, for appellant Byrne.

R Walsworth, for appellee.

OPINION

MORTON J.

This is a bill to reach and apply in payment of a note on demand for $2,500, dated March 15, 1909, given by the defendant Dorey to the plaintiff certain property alleged to have been fraudulently conveyed by said Dorey to the defendant Byrne. The case was referred to a master. Objections were made and exceptions taken to the master's report by the defendants Dorey and Byrne. The exceptions were overruled and the master's report confirmed, and a final decree was entered in favor of the plaintiff that the defendant Byrne held the Linnehan mortgage and note and the seventy-five shares of stock in the American Sugar Refining Company in trust and for the benefit of the defendant Dorey, and ordering him to produce, assign and deliver and same to the clerk to be sold and applied in satisfaction of the plaintiff's debt. Both the defendant Byrne and the defendant Dorey appealed. Dorey has not appeared to prosecute his appeal in this court.

The question of fraud is almost wholly one of fact. Cook v. Holbrook, 146 Mass. 67, 14 N.E. 943. The evidence is not before us, and so far as the exceptions to the report are based upon the contention that the findings of the master were not warranted by the evidence it is manifest that we are not in a position to pass upon the contentions thus made.

At the time when the note was given, the defendant Dorey was engaged in a suit to recover some property in Somerville which he had mortgaged as security for a note of $27,000, dated July 2, 1907, to his son John W. Dorey and his wife Nellie E. Dorey. Previous to giving the note to the plaintiff, Dorey had applied to him to act as counsel for him in that suit and the note was given as a retainer and for services rendered and to be rendered in said suit. The plaintiff in writing agreed 'to press the case for final hearing as rapidly as possible and to take no compromise * * * in said suit without the assent of said John J. Dorey.' The defendant Dorey was to make payments on the note from time to time, but did not do so. This suit was begun before the case was brought to a final hearing, and one contention of the defendants is that it was prematurely brought. The master finds 'that the plaintiff proceeded with said suit as rapidly as possible and with due fidelity.' The note is an absolute promise to pay on demand with interest, and there is nothing in it or in the written agreement to prevent the plaintiff from bringing this suit to enforce its payment. The defendant does not, and according to the findings of the master could not, successfully, contend that the note was invalid for want of consideration.

The Linnehan mortgage was assigned by the defendant Dorey to one Skinner, his niece, in July, 1907. The master finds that it remained subject to the control of Dorey and that this and other property, comprising a large part of what Dorey possessed, was transferred by him to prevent his creditors from attaching it. The sugar stock was transferred by him to Byrne in the latter part of 1907. The Linnehan mortgage was subsequently transferred by Skinner to Byrne, who was a nephew of Dorey, after Dorey had applied to the plaintiff to act for him in the litigation referred to above. According to the report Dorey and Byrne both claimed at the hearing before the master that the Linnehan mortgage and the sugar stock with other property were transferred to Byrne to secure him for large sums of money advanced by him to Dorey from time to...

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