Hutchins v. Nickerson

• Citation: 98 N.E. 791,212 Mass. 118
• Parties: HUTCHINS v. NICKERSON et al.
• Decision Date: 24 May 1912
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

212 Mass. 118

98 N.E. 791

HUTCHINS v. NICKERSON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 24, 1912

COUNSEL

Achorn &amp Bates and G. M. Stearns, all of Boston, for plaintiff.

Elder Whitman & Barnum, of Boston, for defendant.

Jos. F Bassity, of Boston, pro se and for defendant Fotch.

L. G Blair, of Boston, pro se and for defendants Hayes and Gale.

OPINION

RUGG C.J.

1. This is a suit in equity. In the superior court the only decree entered against Nickerson, the principal defendant, was that the bill be taken for confessed. This was not a final decree. Russell v. Lathrop, 122 Mass. 300; Blanchard v. Cooke, 144 Mass. 207, 219, 11 N.E. 83; White v. White, 169 Mass. 52, 47 N.E. 499; Goff v. Hathaway, 180 Mass. 497, 62 N.E. 722; Frow v. De la Vega, 15 Wall. 552, 21 L.Ed. 60; Thompson v. Wooster, 114 U.S. 104, 5 S.Ct. 788, 29 L.Ed. 105. Suits in equity are not properly before this court as of right upon any appeal except from a final decree. R. L. c. 159, § 19, as amended by St. 1911, c. 284, § 1; Fuller v. Chapin, 165 Mass. 1, 42 N.E. 115; Fitzgerald v. Fitzgerald, 65 Mass. 471, 43 N.E. 191. Interlocutory matters cannot be brought here except upon report. R. L. c. 159, § 27. In the superior court decress were entered dismissing the bill as to each of the other defendants. These were final decrees as to those parties, and from these decrees the plaintiff appealed. The gist of this suit is against these defendants. It is not certain that a court of equity would retain a bill like the present against the principal defendant, where the plaintiff is suing on a judgment, after it has been dismissed as to all the other parties against whom alone equitable remedies are invoked. At all events, it would not be obliged to do so when the only relief which can be afforded is strictly legal and not equitable in nature. Newburyport Inst. for Savings v. Puffer, 201 Mass. 41, 47, 87 N.E. 562. We are inclined to think that the decrees appealed from are final in the sense that the real merits of the case are determined by them, and nothing of substance is left open in equity. Under these exceptional circumstances, when no party has raised the point and the issues have been argued fully, we treat the case as properly before the court. See Forbes v. Tuckerman, 115 Mass. 115; Cheney v. Gleason, 125 Mass. 166-180; Lowd v. Brigham, 154 Mass. 107, 26 N.E. 1004; Winthrop Iron Co. v. Meeker, 109 U.S. 180, 3 S.Ct. 111, 27 L.Ed. 898; Lewisburg Bank v. Sheffey, 140 U.S. 445, 11 S.Ct. 755, 35 L.Ed. 493; First Nat. Bank v. Shedd, 121 U.S. 74, 87, 7 S.Ct. 807, 30 L.Ed. 877; Winters v. United States, 207 U.S. 564, 575, 28 S.Ct. 207, 52 L.Ed. 340.

2. The bill is to reach and apply in payment of a debt due the plaintiff certain property conveyed by the defendant, Nickerson, fraudulently and with intent to defeat, delay or defraud his creditors. R. L. c. 159, § 3, cl. 8. The substantial allegations are that Nickerson was a residuary legatee under the will of Caleb Chase, of which the defendants, Sias, Palmer and Rich, are trustees, and that the value of his interest was upwards of seventy-five thousand dollars. No further allegations are made against the trustees. But it is averred that the other defendants with Nickerson conspired together to sell the latter's residuary interest for less than its real value for their own benefit and with intent to defraud, hinder or delay the creditors of Nickerson, in pursuance whereof, first, a loan of $15,000 was procured of Fotch and received by Nickerson, Bassity and Hayes, for which Nickerson's note for $20,000 due in April, 1910, with interest at 1 1/2 per cent. per month was given, secured by an assignment of his interest under the Chase will; next by reason of false representations that the Fotch note was due and that he would take over the interest under the Chase will, Nickerson was induced in October, 1909, to give to Gale an exclusive option on the residuary interest for $55,000, which subsequently changed to $45,000, and that through the efforts of others of the defendants Glines was induced to take an assignment of the Nickerson interest, paying therefor $55,000; out of this sum $20,000 was paid in settlement of the Fotch note, several months before its maturity; $2,000 was repaid to Glines, and other sums paid to others of the defendants either without consideration or largely in excess of any just claim, and that $4,000 only was paid to Nickerson. Pending these transactions, most of which occurred in November and December, 1909, Nickerson was persuaded by certain of the defendants to secrete himself in the house where one of the defendant lived, so that none of his creditors might prevent the sale. The defendants knew that the sale was fraudulent and unconscionable. For the purpose of this opinion the allegations of the bill must be taken as true as all the defendants except Nickerson have demurred, and the bill has been taken pro confesso against him.

The bill sufficiently avers large overdue indebtedness by Nickerson and a conveyance by him of his property upon an inadequate consideration and the distribution of large sums of money out of this inadequate sale among some of the defendants without account to Nickerson and either without any indebtedness or an indebtedness grossly insufficient to justify the payments. A specific intent to defraud, hinder and delay the creditors of Nickerson is averred as tainting every part of all the transactions and knowledge of the damaging facts on the part of those against whom relief is sought. Most if not all of the defendants are alleged to have benefited pecuniarily by a voluntary transfer of property of Nickerson, conveyed so as to put it out of reach of his creditors. These results ensued from the execution of a design in which all participated with the purpose of profiting out of property which ought in good conscience to have gone to the payment of the debts of Nickerson, who during the execution of the plan was secreted from his creditors. This scheme stretches beyond the preference of one creditor to another, permitted at common law, and reaches to the kind of wrong for which the...