Hassam v. Barrett

• Decision Date: 20 June 1874
• Citation: 115 Mass. 256
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Frederick F. Hassam v. Adeline Barrett & others

115 Mass. 256

Frederick F. Hassam v. Adeline Barrett & others

Supreme Court of Massachusetts

June 20, 1874

September 9, 1873;

Suffolk. Bill in equity against the administrators and the heirs of George Barrett, deceased, to compel the reconveyance of a certain parcel of real estate, conveyed by the plaintiff to said Barrett by a deed absolute in form, but which the bill alleged was agreed between the parties to be security for a debt which the plaintiff owed Barrett. The bill did not allege that the agreement to that effect was in writing; the plaintiff offered to pay such sum as should be found due to the defendants.

The defendants demurred to the bill assigning for grounds of demurrer, that the agreement set forth, being in regard to an interest in lands, and not to be performed within one year from the making thereof, was not expressed to be in writing.

Bill dismissed, with costs.

S. J Thomas, for the defendants.

B. E Perry & S.W. Creech, for the plaintiff.

Wells J. Colt, J., absent.

OPINION

Wells, J.

The questions raised by this demurrer have been discussed at length in the case of Campbell v. Dearborn, 109 Mass. 130, which was under consideration by the court when this case was argued. The decision in that case covers the ground of this and the demurrer must be

Overruled.

The defendants having pet in an answer, the case was heard before Morton, J., who reserved it for the consideration of the full court on the following report:

"On January 8, 1856, the plaintiff was the owner of the premises described in his bill, subject to a mortgage for $ 1500. He had a partner in business, who, for his private speculations, issued the notes of the firm to a large amount, rendering the firm and the partners insolvent. George Barrett was a creditor of the plaintiff, individually, to the amount of $ 2250. For the purpose of securing Barrett and of preventing the creditors of the firm from reaching this property by attachment or proceedings in insolvency, the plaintiff made a deed, absolute in form, of the premises, to Barrett, and caused it to be recorded without Barrett's knowledge. Afterwards, within a month, he informed Barrett of the fact, and the following oral agreement was then made: Barrett was to pay the $ 1500 mortgage, and to hold the property as security for the amount paid and his debt of $ 2250, with interest at the rate of seven per cent. per annum. The plaintiff was to pay Barrett $ 315 a year in the form of rent for the premises. As this amount exceeded the interest agreed on, it was agreed that upon a settlement the excess should be allowed to the plaintiff, with interest at the same rate of seven per cent.; and upon such settlement, and the payment to Barrett of the amount found to be due, he was to convey the estate to the plaintiff.

"The plaintiff occupied the estate under this arrangement, paying taxes and repairs and paying the yearly sum of $ 315 in the form of rent, until the death of Barrett. In July 1866, the parties accounted together orally, and it was found that, allowing for the excess of yearly payments over interest, and some other payments made by Hassam, there was then due Barrett $ 3000. Barrett soon after became insane, and remained insane until his death in 1869.

"It also appeared that Hassam has, since this deed was given, settled with his creditors. Upon these facts the case is reported for the determination of the full court, such judgment to be entered as it shall deem proper."

B E. Perry ...