Gray v. Chase

• Decision Date: 25 November 1903
• Parties: GRAY v. CHASE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

184 Mass. 444

68 N.E. 676

GRAY v. CHASE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

November 25, 1903

COUNSEL

H. J. Jaquith, for appellants.

Richard D. Ware, for appellee.

OPINION

LATHROP, J.

This is a bill in equity, brought by the trustee in bankruptcy of the estate of Nathaniel E. Chase, who was adjudicated a bankrupt on his own petition on April 3, 1900, to have the defendants Irene Chase and Charles M. Chase ordered to deliver up certain conveyances and to release their rights in two parcels of land. There were other defendants, who are not now parties to the suit. The case was sent to an auditor, who made a report, which was amended by leave of court, and there were several supplemental reports of the auditor. The controversy relates to two parcels of land in Boston--one No 4 Chestnut street; and the other formerly the rear part of the first parcel, and now the rear of No. 9 Walnut street. The auditor's report states many facts, some of which have now become immaterial. The other facts may be summarized thus: Nathaniel E. Chase bought the house numbered 4 Chestnut street for the sum of $19,500, of which $16,500 was paid by a mortgage given by him to his vendor, and the remaining $3,000 was paid by a check of his wife's, she having money of her own. Subsequently Nathaniel E. Chase made several mortgages, all of which have been found to be valid. One of these, for $10,000, was to a third person, who held it for the benefit of Mrs. Chase on account of the $3,000 advanced by her for the purchase of the house and for other advances subsequently made. In this state of affairs, on December 16, 1897, the rear of the lot No. 4 Chestnut street was conveyed by Nathaniel E. Chase to a third person, who conveyed it to Mrs. Chase. Neither the third person nor Mrs. Chase paid any consideration for it. Mrs. Chase at this time had agreed to purchase the lot of land No. 9 Walnut street, and desired to have the rear portion of the Chestnut street lot, which adjoined the lot No. 9 Walnut street, annexed to the latter estate. Releases were obtained from the holders of the first and second mortgages on the rear portion of the Chestnut street lot, and two mortgages held by Mrs. Chase were canceled (the $10,000 mortgage being afterwards given in their place). The parcel was then conveyed by Mr. Chase to one Reynolds, to whom the lot No. 9 Walnut street was also conveyed by its owners. Reynolds conveyed the two parcels to Mrs. Chase, who thereupon gave a mortgage on the same to one Chamberlain for $16,000, which mortgage is still outstanding. The auditor found that Mr. Chase received no consideration for his conveyance to Reynolds. The auditor further found that there was no evidence that this conveyance was made by Mr. Chase or accepted by his wife with any fraudulent intent, or for the purpose of hindering or defrauding creditors. On or about February 26, 1898, Mr. Chase conveyed his equity in the estate No. 4 Chestnut street, subject to the mortgages thereon, then amounting to $25,000, to Edwin M. White, by a deed in which Mrs. Chase did not release dower. No consideration was paid for this conveyance, and the auditor had found that the property was not transferred in good faith, but to prevent its attachment by creditors of Mr. Chase. After this conveyance, a paper in the nature of a lease was made by White to Mrs. Chase, who has continued ever since to occupy the house as she did before, paying no rent, but paying interest on the mortgages, taxes, and other expenses of carrying the property. The auditor further found that the real purpose of the conveyance to White was to prevent its attachment in a threatened suit by the executrix of an attorney at law who had a claim for professional services against Mr. Chase at the time the conveyance to White was made, but that there was no direct evidence that this specific purpose was known to White at the time. In his supplemental report the auditor found that the actual rental value of the estate No. 4 Chestnut street is $1,500. He also annexed a copy of the paper signed by White, dated March 25, 1898, in which he stated that he, as owner of the estate No. 4 Chestnut street, accepted Mrs. Chase as his tenant at will, she to pay as rent the taxes levied or assessed on the premises, and the interest as it became due on three mortgages of $14,000, $1,000, and $10,000, which were secured on the premises, and all interest that should accrue upon said mortgages, to the end of her tenancy, and to do all necessary repairs.

The case was then heard before the chief justice of the superior court upon the auditor's report and certain exhibits and agreed facts which are unimportant. The chief justice made a memorandum of his findings, which was afterwards incorporated in an interlocutory decree filed February 12, 1902. By the terms of this decree it was ordered that the defendant White should release to the plaintiff the premises described in the bill and known as No. 4 Chestnut street, as conveyed to him by the deed of February 28, 1898, and that he make, execute, and deliver to the plaintiff a deed of the same; that Mrs. Chase make, execute, and deliver to the plaintiff a good and sufficient release of all her right, title, and interest in the real estate conveyed to her by Charles D. Reynolds, being the original rear part of No. 4 Chestnut street; that White account to the plaintiff for what should have been received for rent and use and occupation of the premises No. 4 Chestnut street at the rate of $1,500 a year from April 1, 1900, up to the present time, so far as the same is in excess of the sum actually paid by Mrs. Chase during that time for taxes, interest, and necessary repairs on the estate; that Mrs. Chase account to the plaintiff for rent, use, and occupation of the estate No. 4 Chestnut street at the rate of $1,500 a year from April 1, 1900, to the present time, less sums actually paid by her during that time for taxes; and that the cause be recommitted to the auditor to state the accounts between the parties, and the amounts for which the defendants, should severally be charged. On March 5, 1902, the defendants appealed from this decree.

On January 24, 1902, Mrs. Chase filed a paper suggesting the death of her husband, and stating that her right of dower was now vested. No action appears to have been taken on this suggestion, nor does the matter appear to have been called to the attention of the court. Subsequently the auditor filed a report under the interlocutory decree, and this was not considered by the court as satisfactory. The case was recommitted to the auditor, who found a balance due from Mrs. Chase of $869.29, being the difference between the rent due from her and the interest paid on the first and second mortgages, taxes, and repairs. He also found that Mr. White was liable for the same amount, based on the same figures. The case was again heard, and a final decree was entered, by which, 'in addition to said interlocutory decree of February 12, 1902,' the defendants Mrs. Chase and Mr. White were severally ordered to pay the sum of $869.29, with costs, within 30 days. From this decree the defendants appealed.

Why an auditor, instead of a master, was appointed in this case there is nothing in the record to show, and it may be that technically his report should be treated as that of a master (Falmouth v. Falmouth Water Co., 180 Mass. 325, 62 N.E. 255), and that, so treated, nothing is open, unless an exception in regard to it is filed to the report (Popple v. Day, 123 Mass. 520; Roosa v. Davis, 175 Mass. 117, 55 N.E. 809). It appears from the memorandum of the chief justice of the superior court that there were exceptions filed to the first report, which were waived. No other exceptions appear to have been filed, nor were any requests for rulings made. But as the sending of the case to an auditor, instead of a master, was the act of the court, and not of the parties, we are disposed to treat the case more liberally, and to decide it upon its merits, though we do not intend to have our action in so doing considered as a precedent for the future.

1. The first question arises in regard to the parcel of land at the rear of No. 4 Chestnut street,...