Busiere v. Reilly

• Decision Date: 28 November 1905
• Citation: 189 Mass. 518,75 N.E. 958
• Parties: BUSIERE v. REILLY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

189 Mass. 518

75 N.E. 958

BUSIERE v. REILLY.

Supreme Judicial Court of Massachusetts, Bristol.

November 28, 1905

COUNSEL

Fuller & Davison, for appellant.

Fredk.S.Hall and Chas. C. Hagerty, for appellee.

OPINION

SHELDON, J.

This is a bill in equity brought by the special administrator of the estate of Ellen Reilly to cancel a deed given by her to the defendant, her brother.In March or April 1901, the defendant came from his home in Ohio to visit her in Taunton.During this visit she executed and delivered the deed to him, conveying the property to him in fee, on condition that he hold it subject to a life estate for her benefit.The deed was dated April 12, 1901.He recorded it in May, 1902.She died September 11, 1903, leaving a will dated September 5, 1903, by which she left all her property 'and whatever rights I may have for the recovery of certain property obtained from me' by the defendant'through fraud and deceit,' to Annie M. Reilly.This will had not been admitted to probate when the bill was filed, but has since been proved and allowed.Issues were framed for a jury trial; and the jury found that the deed was obtained from Ellen Reilly by the defendant'by his false and fraudulent representation to her that said instrument would not deprive her of the right to dispose of her property in any manner she might desire during her lifetime,' and under an express agreement and understanding that he would not record it during her lifetime, and that when she executed it she did not know it to be a deed which constituted a present transfer of her property.On November 9, 1904, Ellen Reilly's will was proved and allowed.The bill was then amended by substituting Annie M. Reilly, the devisee, as plaintiff, and a final decree was entered that the deed be canceled and set aside.The defendant appeals, and in his brief complains only of the order of the court allowing the amendment, and of the final decree.

1.The amendment was within the discretion of the court.King v. Howes,181 Mass. 445, 63 N.E. 1062;Lewis v. Austin,144 Mass. 383, 11 N.E. 538.Doubtless the bill, when amended, must be treated as having been brought by Annie M. Reilly before the will containing the devise to her had been allowed; but upon the allowance of the will her title related back to the death of the testatrix.Drury v. Natick,10 Allen, 169, 182;Ex parte Fuller, 2 Story, C. C. 327, Fed. Cas. No. 5,148;Ives v. Allyn,13 Vt. 629;Hamilton v. Porter,63 Pa. 332.And, as the final decree was not entered until the will had been allowed, it cannot now be assailed for the lack of a proper plaintiff.Nor was the right of action abated by the death of the person defrauded.Hagar v. Norton,188 Mass. 47, 73 N.E. 1073.

2.The question remains whether the final decree was properly entered on the averments of the bill and the finding of the jury.The bill avers, and the jury found, that the defendant obtained the deed from Ellen Reilly, the plaintiff's devisor, by false and fraudulent representations to her that the instrument would not deprive her of the right to dispose of her property in any manner she might desire during her lifetime, and that she did not know it to be a deed transferring her property.As the jury have found, under instructions which do not appear to have been objected to, that the defendant's representations were in fact false and fraudulent, the only question here open is whether they were such as to afford a ground for relief.If so, there is no question that equity can give relief by canceling the deed and, if necessary, by ordering a reconveyance of the property.Weeks v. Currier,172 Mass. 53, 51 N.E. 416;Fuller v. Percival,126 Mass. 381;Martin v. Graves, 5 Allen, 601.The finding of the jury that the deed was obtained by this fraud, no further evidence having been offered by either party, must now be taken to have settled that all the elements necessary to constitute actionable fraud were found to have existed.Dudley v. Dudley,176 Mass. 34, 56 N.E. 1011;Langmaid v. Reed,159 Mass. 409, 34 N.E. 593;Franklin v. Greene, 2 Allen, 519;Crocker v. Crocker,188 Mass. 16, 18, 19, 73 N.E. 1068.And the fraudulent representations were not so merged in the deed procured by means of them that they may not be made the basis of a decree to set it aside.Weeks v. Currier,172 Mass. 53, 55, 51 N.E. 416.

The only question remaining is whether the fraudulent representations could be found to be of such a nature that equity may relieve against them.The defendant argues that they were not statements of fact, but merely representations of the legal effect of the instrument, and so cannot be made a ground of relief either at law or in equity; and he relies on Taylor v. Buttrick,165 Mass. 547, 43 N.E 507, 52 Am. St. Rep. 530.But we think that this case comes rather under the rule of Motherway v. Wall,168 Mass. 333, 47 N.E. 135.This deed was not explained to the grantor therein,...