Clark v. Seagraves

• Decision Date: 15 September 1904
• Citation: 186 Mass. 430,71 N.E. 813
• Parties: CLARK v. SEAGRAVES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

186 Mass. 430

71 N.E. 813

CLARK v. SEAGRAVES.

Supreme Judicial Court of Massachusetts, Middlesex.

September 15, 1904

COUNSEL

Herbert

Parker, Frank N. Thayer, and Geo. A. Gaskill, for appellant.

Hiram P. Harriman, Harry E. Perkins, and John F. Neal, for appellee.

OPINION

LORING J.

On February 10, 1894, Edward Clark died, leaving a son, Edward P. Clark, the plaintiff's intestate, and a daughter Stella Clark, now Stella Clark Seagraves, the defendant. The son and daughter were appointed to administer their father's estate. The son died February 14, 1895. The bill now before us was brought in 1898 by the administrator of the son's estate against the daughter, as administratrix of the father's estate, to redeem the son's interest in and to the personal estate of the father; also his interest in two lots of land in Uxbridge, and 'in certain real estate situated in the state of Ohio,' assigned and conveyed by the son to the daughter in 1894, on the ground that the assignment and conveyances were made for the purpose of securing what was due from the son to the estate of the father. In the original answer filed by Mrs. Seagraves as administratrix it is alleged that the three conveyances were conveyances of real and personal property to which the son was 'entitled as heir at law' of their father, and were made in settlement of the estate of the father, and not as collateral security for a debt or debts due from the plaintiff's intestate to the estate. The case was sent to a master, who made a report in favor of the plaintiff. The bill was then amended by making Mrs. Seagraves a defendant in her individual capacity, and the suit was recommitted to the master. Exceptions were taken to both reports, and all of them were overruled by the court. The case is here on appeal.

The first objection argued by the defendant is that, although a conveyance which is absolute in form can be shown to have been given as security for a debt due to the grantee, it cannot be shown to have been intended as security for a debt due to a third person. The ground on which the grantor of an absolute deed of real estate can go into equity and show that it was in fact given to secure a debt is fraud. See Campbell v. Dearborn, 109 Mass. 130, 137, 142, 12 Am. Rep. 671. See, also, Hassam v. Barrett, 115 Mass. 256. It is as much a fraud to take and insist upon the benefit of an absolute conveyance which was intended to secure a debt due to another as to take and insist upon it when it was intended to secure a debt due to the grantee. The doctrine of Campbell v. Dearborn, 109 Mass. 130, 12 Am. Rep. 671, is as applicable in the one case as in the other. We are of opinion that this point is not well taken.

Her next contention is that, inasmuch as the defendant in her individual capacity contended that these deeds were her separate property, no bill which is in effect a bill to redeem them can be maintained until it is ascertained that they belong to the estate, and not to her individually; that the issue whether these deeds were her separate property or are assets of her father's estate is an issue within the exclusive jurisdiction of the probate court, and until it has been disposed of there and a conveyance made by the defendant individually to herself as administratrix, the bill cannot be maintained. This bill is brought by the plaintiff as a debtor of the estate of Edward Clark. Had such a bill been brought by a stranger to the estate who had mortgaged his property to a third person to secure a debt due to the estate, it is plain that there would be nothing in this contention. A stranger could allege in his bill that the absolute conveyance was in fact given as security, and for the purpose of proving that issue he joins the grantee named in the deed. He can also allege that the debt for which it was given as security was a debt due to the estate, and not due to the grantee. If the administrator disclaimed such a debt being due to the estate, that would relieve the plaintiff. If the administrator claimed the debt, the plaintiff can redeem on paying it. In the case at bar, the plaintiff, having made the administratrix a party defendant in her individual capacity, can try the question whether the conveyances were in fact intended as collateral security and were made for her separate benefit, and, having made her a party defendant in her representative capacity as administratrix, he can try the question of the amount due, and obtain a decree allowing him to redeem. The fact that one of the things conveyed was personal property coming to the plaintiff's intestate as one of the two persons interested in the estate, and the fact that all persons interested in the estate except creditors are parties to this proceeding, and for that reason the issues which would naturally arise in the probate court may be held to be res judicata so far as the personal property is concerned, if they are raised there after this suit is concluded here, is accidental and immaterial. The contentions set forth in the second, third, and fourth exceptions to the amended report were not well taken.

The next contention argued is that the allegations of the bill were originally made with respect to the defendant in her official capacity, and were not repeated as to the defendant individually, when, by an amendment to the bill, she was joined as a party defendant in that capacity. This contention is made principally in support of the fifth exception; that is, an exception to the refusal of the master to find that the bill cannot be maintained because the prayer is for an accounting, and it is not apparent from the bill whether the plaintiff seeks an accounting from the defendant in her individual or her representative capacity. The only question before the master was whether evidence on these allegations was admissible. It is plain that it was. It is the duty of the master to find the facts. The master is not required to pass on the question whether on those facts the plaintiff is entitled to a decree; much less to what decree he is entitled.

The next question argued by the defendant is the ruling as to an accounting. It will be more convenient to discuss this after disposing of the defendant's next contention, to wit that, inasmuch as it is not pretended that the plaintiff has a license to sell the real estate of his intestate, Edward Payson Clark, the grantor in the conveyances in question the bill cannot be maintained. The exception of the defendant and the argument made in support of it seem to overlook the fact that one of the three conveyances is an assignment of 'all his [the son's] right, title and interest in and to any personal property or estate of any and every name and nature to which he might be entitled as one of the heirs of' the father. To that extent the exception is not well taken. One of these deeds of land conveyed 'all his [the son's] right, title, and interest in and to two certain tracts of land situated in said Uxbridge,' to wit, Uxbridge in this commonwealth. The question is here presented whether a bill to redeem land from a deed which is absolute on its face, but was in fact given as security, can be maintained after the death of the grantor by the administrator of his estate. It is not pretended that at common law an administrator can bring a bill to redeem real estate which was conveyed by a mortgage deed by the intestate. The equity of redemption is now an estate in land recognized at law as well as in equity, and an estate which descends to the heir. The right to redeem is at common law in the heir. The commissioners who were appointed to revise the statutes before the Revised Statutes of 1836 were enacted reported two sections changing the law in this respect. Commissioners' Report, Rev. St. c. 107, §§ 27, 28. Their reasons for the change are stated in the note to these sections to be: 'The right to make the tender, and to commence and prosecute the suit, is proposed to be given to the executors or administrators, as well as to the heirs or devisees. It may be sometimes convenient that an executor or administrator should redeem, for the benefit of minor heirs, widows, or others who cannot act for themselves; and if the land probably be wanted to pay the debts of the deceased, there may be no one interested to redeem, unless it is the executor or administrator for the benefit of the creditors.' The sections thus proposed became Rev. St. 1836, c. 107, §§ 30, 31, and were re-enacted in Gen. St. 1860, c. 140, §§ 32, 33; Pub. St. 1882, c. 181, §§ 39, 40; and Rev. Laws, c. 187, § 33. The provisions of Rev. Laws, c. 187, § 33, are that, 'if the owner of an equity of redemption dies,' the administrator may redeem. The grantor of an estate by an absolute deed in fact given as security is not perhaps 'the owner of an equity of redemption' in the strict technical sense of the word. Technically speaking, it cannot be said that in case of such a deed any estate is left in the grantor, and the words of the statute imply that the person whose administrator is entitled to redeem under the statute must have an estate. The language of the original act, however, is 'a person entitled to redeem,' in place of 'the owner of an equity of redemption'; language which can more easily be construed to include a grantor of an absolute deed intended as security who has a right to redeem on the ground of fraud. The change in...