Dunne v. Cunningham

• Decision Date: 08 January 1920
• Citation: 234 Mass. 332,125 N.E. 560
• Parties: DUNNE et al. v. CUNNINGHAM et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

234 Mass. 332

125 N.E. 560

DUNNE et al.

v.CUNNINGHAM et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 8, 1920.

Appeal from Superior Court, Suffolk County.

Suit by Michael Dunne and another against Maurice F. Cunningham and another. From decree dismissing the bill, plaintiffs appeal. Affirmed.

Charles F. Perkins and Harold C. Haskell, both of Boston, for appellants.

Hurlburt, Jones & Hall, Damon E. Hall, and C. J. Muldoon, Jr., all of Boston, for appelles.

RUGG, C. J.

This is a suit in equity brought originally by Michael and Mary Dunne, husband and wife, and filed April 11, 1916. The defendant Cunningham is an attorney at law. The purpose of the suit is to secure a reconveyance of real estate made to Cunningham under a foreclosure of a mortgage, the record title now being held by the defendant Tracey, on the ground that it was obtained by Cunningham through a breach of the trust reposed in him as their attorney by the plaintiffs. For convenience Cunningham will hereafter be referred to as the defendant.

Michael Dunne was adjudicated a bankrupt in June, 1913, and his trustee was joined as a plaintiff in this suit in December, 1916. The master reports that he ‘did not appear in these proceedings and so far as appears has made no claim or demand upon the defendant in connection with any of the matters' set forth in his report. It must be assumed that this means that he did not appear in the hearings because manifestly he had appeared of record. The appeal is in behalf of all the plaintiffs and the brief is so signed. Whether the trustee in bankruptcy was of opinion that there was no ground for seeking a reconveyance from the defendant on the merits of the transaction or that his rights were affected by reason of the tenancy by the entirety of the plaintiffs (Hoag v. Hoag, 213 Mass. 50, 99 N. E. 521, Ann. Cas. 1913E, 886;Palmer v. Treas. & Recvr. Genl., 222 Mass. 263, 110 N. E. 283, L. R. A. 1916C, 677) need not be inquired. No argument has been addressed to us in behalf of the trustee as distinguished from the other two plaintiffs and his rights need not be separately considered. For convenience plaintiffs will be used herein as indicating Michael and Mary Dunne.

The case was referred to a master. The plaintiffs took no exceptions. Those of the defendant were overruled by an interlocutory decree also confirming the master's report from which no appeal was taken. From a final decree dismissing the bill the plaintiffs appealed. The evidence is not reported. The facts found by the master must be taken as true. The only question is whether the final decree was warranted by the pleadings and the report of the master. Harrigan v. Dodge, 216 Mass. 461, 103 N. E. 919.

The plaintiffs being the owners of the parcel of real estate in question, deeded it in November, 1910, to Bridget Dunne and after several conveyances the record title stood in the name of Christine O'Toole. The master has found that the purpose of these conveyances was to avoid the possibility that the land might be available for creditors of Michael Dunne. Christine O'Toole held the record title from February, 1912, until the foreclosure. The master has found that she held title to the property for the plaintiffs. She has not been made a party to the suit. The conveyance by the plaintiffs to her in fraud of the creditors of Michael was good as between the parties, upon familiar principles. Clapp v. Tirrell, 20 Pick. 247, 250;Dyer v. Homer, 22 Pick. 253, 256;Pollock v. Pollock, 223 Mass. 382, 385, 111 N. E. 963;Lufkin v. Jakeman, 188 Mass. 528, 532, 74 N. E. 933. It is plain that the plaintiffs on the record had no title to the premises at the time of the foreclosure and no right to redeem. The rights of Christine O'Toole to the equity of redemption cannot be adjudicated in a suit to which she is not a party. Bridget Dunne has died and her heirs are not parties hereto. This ground is conclusive against the right of the plaintiffs to recover in this suit.

The plaintiffs cannot show any right or title in themselves without showing first the conveyances of this property in fraud of creditors. Manifestly no relief can be afforded on this ground for they do not come into court with clean hands.

The contention of the plaintiffs is that the defendant being their attorney was guilty of a want of fidelity to their interests and used his position to acquire their property in his own name to his own profit. The price he paid was substantially less than its real value. He has refused to reconvey it and contends that he was a purchaser in his own right. The master found that Michael Dunne and the defendant agreed that the latter should buy the property and own it absolutely and that Dunne was willing that he should do so in order that thereby he Mr....