Desmond v. Moffie, 6839.
| Citation | 375 F.2d 742 |
| Decision Date | 13 April 1967 |
| Docket Number | No. 6839.,6839. |
| Parties | George R. DESMOND, Trustee, Plaintiff, Appellant, v. Marilyn J. MOFFIE, Defendant, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (1st Circuit) |
George R. Desmond, Framingham, Mass., for appellant.
Leonard M. Salter, Boston, Mass., for appellee.
Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.
In this action plaintiff trustee in bankruptcy seeks to set aside as fraudulent a conveyance of certain Massachusetts real estate made by the bankrupt to his wife in January 1962. The suit, which was commenced on August 22, 1966,1 is based on Section 70(e) of the Bankruptcy Act.2 Under this section a trustee in bankruptcy stands in the shoes of a creditor who has a provable claim and may set aside any transfer of property by the bankrupt which is fraudulent or voidable under applicable state law.
Plaintiff alleged facts which would render the conveyance in question voidable under the Massachusetts Uniform Fraudulent Conveyance Law. Mass.Gen. Laws ch. 109A (1932). Defendant countered with a motion for summary judgment on the ground that this is an action sounding in tort and therefore is barred by the two year statute of limitations applicable to suits on tort claims. Mass. Ann.Laws ch. 260, § 2A (1952). The district court granted defendant's motion.
On appeal, plaintiff contends that his suit is not barred because it is founded on contract and hence is governed by the six year limitation applicable to contract actions. Mass.Gen. Laws ch. 260, § 2 (1932). This is the only issue raised by this appeal.
In Massachusetts the statutes of limitation applicable to law actions based on contract and tort are also applicable to suits in equity. Kagan v. Levenson, 334 Mass. 100, 134 N.E.2d 415, 62 A.L.R.2d 704 (1956). In deciding which statute applies in a given case, it is necessary to determine the essential nature of plaintiff's claim. Kagan v. Levenson, supra. In Blumenthal v. Blumenthal, 303 Mass. 275, 21 N.E.2d 244 (1939), the court held that the essential basis of the statutory proceeding to set aside a fraudulent conveyance is an indebtedness that could ordinarily be enforced in an action of contract, and that the nature of the claim is in no way changed by the form of procedure. Accord, State of Rio De Janeiro v. E. H. Rollins & Sons, 299 N.Y. 363, 87 N.E.2d 299, 14 A.L.R.2d 594 (1949); see Salvucci v. Sheehan, 349 Mass. 659, 212 N.E.2d 243 (1965); cf. Viera v. Menino, 322 Mass. 165, 76...
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Branch v. FDIC
...rather than tort statutes of limitations, to fraudulent conveyance actions. E.g., Niedorf, 522 F.2d at 918; Desmond v. Moffie, 375 F.2d 742, 743 (1st Cir.1967) (Massachusetts fraudulent conveyance law); Franklin Nat'l Bank, 376 F.Supp. at 381. Similarly, courts have declined to apply tort c......
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DeGiacomo v. Tobin & Assocs., P.C. (In re Inofin Inc.)
...to the "essential nature" of the plaintiff's claims to determine the applicable statutory period. Id. at 420 (citing Desmond v. Moffie, 375 F.2d 742, 743 (1st Cir.1967), and Hendrickson v. Sears, 365 Mass. 83, 310 N.E.2d 131, 133 (1974)). In Helming, the court added: "The law in Massachuset......
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GATX Corp. v. Addington
...States v. Franklin, 376 F.Supp. 378 (E.D.N.Y.1973); Branch v. Fed. Deposit Ins. Corp., 825 F.Supp. 384 (D.Mass.1993); Desmond v. Moffie, 375 F.2d 742, 743 (1st Cir.1967)). Therefore, the S. Prawer & Co. Court held that a fraudulent conveyance action could not serve as a tort underlying a ci......
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Diamond v. Friedman (In re Century City Doctors Hosp., LLC)
...denied, 423 U.S. 1087, 96 S.Ct. 878, 47 L.Ed.2d 97 (1976). Courts in other districts have held similarly. See, e.g., Desmond v. Moffie, 375 F.2d 742, 743 (1st Cir.1967) (finding a fraudulent conveyance claim under Massachusetts Uniform Fraudulent Conveyance Law not to be a tort for purposes......