Burroughs v. Wynn
| Decision Date | 28 February 1977 |
| Docket Number | No. 7449,7449 |
| Citation | 117 N.H. 123,370 A.2d 642 |
| Parties | Leslie BURROUGHS and Vera Burroughs Raymond v. Hilda WYNN. |
| Court | New Hampshire Supreme Court |
Sullivan & Wynot, Manchester (Edward D. Wynot, Manchester, orally), for plaintiffs.
Nixon, Christy, Tessier & Peltonen, Manchester, and Randolph J. Reis, Nashua
(David L. Nixon, Manchester), for defendant.
Bill in equity to declare a conveyance of property null and void. Trial by the court resulted in a decree for the plaintiffs. Subsequent to the decree, the defendant filed a motion for rehearing so as to permit the consideration by the court of testimony and exhibits claimed to be material to the defendant's case but not introduced at the time of the original hearing allegedly due to accident, mistake, and misfortune, and through no fault of the defendant. After hearing, the motion was denied. Defendant duly excepted. All questions of law were reserved and transferred by the Trial Court (Johnson, J.).
All parties to this action are children of Rhoda M. Burroughs who died testate on October 30, 1946. Under her will, plaintiff Leslie Burroughs was given a life estate in certain realty, with a remainder to the plaintiff Vera Burroughs Raymond if she survived Leslie. The defendant Hilda Wynn was one of the remaining children who were given a contingent remainder in said property in the event Vera predeceased the life tenant.
Leslie Burroughs, a handicapped person not completely self-supporting, received assistance from members of his family, including his plaintiff and defendant sisters. Plaintiff Vera paid the taxes for several years after the mother's death and the defendant Hilda then volunteered to pay them from 1951 to 1966. There was no evidence suggesting that the defendant, or anyone else, expected repayment of monies expended for Leslie's support and/or the taxes.
In 1967, the defendant failed to pay the taxes when due, but this was not unusual as she had been late paying them in several prior years. On this occasion, however, the defendant not only failed to pay the taxes but she purchased the real estate at a tax collector's sale held on April 5, 1968. A deed dated April 8, 1970, was obtained from the tax collector and recorded by the defendant in the Grafton County Registry of Deeds. In 1971 the plaintiffs learned of the tax sale, and they commenced this action alleging that the defendant had obtained the real estate by fraud. Plaintiffs further alleged that defendant thereafter concealed her actions and deliberately led plaintiffs to believe that they continued to hold title to said property. The trial court found for the plaintiffs, ordering the defendant to reconvey the property under the same terms of ownership as existed prior to the tax collector's deed. Plaintiffs were ordered to reimburse the defendant for taxes paid plus interest at six percent per year.
The first issue raised on appeal is whether the evidence was sufficient to support the court's finding that the defendant acted fraudulently.
We agree that fraud will never be presumed, but must be established by clear and convincing proof, and that fraud will not be implied from doubtful circumstances. Sheris v. Thompson, 111 N.H. 328, 331-32, 295 A.2d 268, 271 (1971). 'However, the proof need not be absolute but may be founded on circumstances such as existed here where the defendant's motive to mislead was strong and his conduct both before and after the misrepresentation complained of evinced a controlling intent to look after his own interests rather than carry out his commitments to the plaintiff.' Lampesis v. Comolli, 101 N.H. 279, 283, 140 A.2d 561, 564 (1958).
A review of the transcript shows ample evidence to support a finding of fraud. For example, on two occasions subsequent to the 1967 tax sale, the defendant arranged meetings between the plaintiff Vera and prospective buyers. The defendant, never indicating she owned the premises, refused to participate in any of the conferences and created an impression that ownership was still in the plaintiffs. Mrs. Wynn's conduct, subsequent to her purchase for unpaid taxes, evidenced an intention to keep information of the sale from the plaintiffs while exercising control over the property under the guise of protecting the interest of Leslie. Accordingly, the defendant's exception as to the sufficiency of the evidence is overruled.
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Bartlett v. Mut. Pharm. Co. Inc.
...145 N.H. 73, 77, 761 A.2d 1046 (2000). This showing must be made by clear and convincing evidence. See, e.g., Burroughs v. Wynn, 117 N.H. 123, 124, 370 A.2d 642 (1977). On this record, Bartlett has not presented any evidence-much less clear and convincing evidence-of actual reliance on Mutu......
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State v. Cote
...of a new trial, after notice and an opportunity to be heard, is in the discretion of the [trial] court...." Burroughs v. Wynn, 117 N.H. 123, 125, 370 A.2d 642, 644 (1977). In this case, a hearing was held on the motion for a new trial, and the question presented to us is therefore one of ab......
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State v. Abbott
...be reached upon another trial.' [citations omitted]." Kelly, supra 120 N.H. at 906, 424 A.2d at 822 (quoting Burroughs v. Wynn, 117 N.H. 123, 126, 370 A.2d 642, 644 (1977); Rautenberg v. Munnis, 109 N.H. 25, 26, 241 A.2d 375, 376 (1968) ). The State agrees that the witness was not known pri......