Iantosca v. Iantosca

• Decision Date: 03 May 1949
• Citation: 86 N.E.2d 59,324 Mass. 316
• Parties: VIRGIL J. IANTOSCA v. FLORINDA M. IANTOSCA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

324 Mass. 316

86 N.E.2d 59

VIRGIL J. IANTOSCA v. FLORINDA M. IANTOSCA.

Supreme Judicial Court of Massachusetts, Suffolk.

May 3, 1949

November 4, 1948.

Present: QUA, C.

J., RONAN, WILKINS SPALDING, & WILLIAMS, JJ.

Deed Acknowledgment. Evidence, Presumptions and burden of proof Certificate of acknowledgment. Gift. Personal Property Transfer of title, Business.

The mere fact that a recorded deed of real estate bore a certificate by a notary public of its acknowledgment by the grantor was sufficient in itself to warrant a finding of its due acknowledgment.

A finding that an intended gift of an entire taxi business by a husband to his wife was completed by a sufficient delivery was not plainly wrong on evidence of an informal statement signed by the husband and delivered to his wife, of letters later sent her by him, and of conduct of the parties, although no formal instrument of conveyance was executed or delivered.

PETITION IN EQUITY, filed in the Probate Court for the county of Suffolk on March 28, 1947.

The case was heard by Wilson, J. C. W. O'Brien, for the petitioner.

C. D. Driscoll, for the respondent, submitted a brief.

WILLIAMS, J. This is a petition in equity in which the petitioner, formerly the husband of the respondent, seeks a reconveyance by his former wife of the land and single family house at 19 Braemore Road, Brighton; a return of the assets of a taxi business located at Cleveland Circle in said Brighton and registered by the petitioner under the name of Cleveland Taxi Service; and an accounting of the profits derived from said real estate and taxi business from March 13, 1942. In her answer the respondent asks for a determination that the taxi business belongs to her and also says that the petitioner has been guilty of laches. The judge of the Probate Court made findings of material facts and the evidence is reported. The petitioner has appealed from a decree determining that the property at 19 Braemore Road is the property of the respondent and that the business of the Cleveland Taxi Service with its assets is the property of the respondent, ordering the petitioner to perform any act or acts necessary to transfer "full possession and control of said business and assets to the respondent," and ordering the respondent to execute an agreement to indemnify the petitioner and hold him harmless from any claims or demands relating to the business arising from its operation since March 13, 1942.

The judge found that the parties were married in 1932 and have one child, a daughter. At some time domestic trouble developed. On September 5, 1940, while living apart from his wife, the petitioner purchased the real estate in question for $6,000, paying for it $600 in cash and giving a purchase money mortgage with the usual amortization provisions for the balance. After the purchase the respondent and the daughter returned to live with the petitioner in the newly purchased house, the family at that time including the petitioner's mother and his son by a former marriage. The petitioner had owned and operated the Cleveland Taxi Service since 1929, and the house was a convenient place for the location of the business telephone which was connected with a street telephone at the taxi stand. The respondent attended to the telephone calls. Early in 1942 the domestic situation became worse and the petitioner decided to enlist in the navy. In order to do so, under the then existing governmental regulations, it was necessary for him to obtain and file an affidavit of his wife to the effect that she was self sustaining. At that time he owned and operated seven taxicabs, which were partly paid for. Sometime in February, 1942, he prepared and handed to his wife a paper written by him in longhand and signed "Fitz," a name by which he was sometimes called, reading as follows: "I will transfer in your name, the house and furniture as it stands, the Cleveland Taxi Service, and Tel. No. Asp. 8700, 7 cabs, meters, medallions, registrations, the repair shop and all equipment belonging to the Cleveland Taxi Service, the office furniture and equipment, or anything else used in connection with the business. I will not make any demands on you in the future for anything at any time. I will take 1 car, motor boat `Flee,' the camp at Marshfield, my personal belongings such as hunting and fishing equipment, souvenirs and trophies, all tools that I may need to secure a position. My mother will take only her personal belongings. My son will take only his personal belongings. It is understood that you will not make any demands on me in the future regardless of the success or failure of either of us. This will become legal only when your and my attorney agree to terms, and in a legal manner. Fitz." Subsequently there was a conference of the parties, their attorneys being present, at 19 Braemore Road on the evening of February 23. The proposed settlement was satisfactory to the respondent. At that time it was arranged that a deed of the house to the respondent was to be drawn together with the papers for the transfer of the assets of the taxi business, including an assignment of the insurance policies and of the medallions which evidenced the taxi licenses issued by the police commissioner and a bill of sale of the tangible property. His wife having signed the necessary affidavit, the petitioner enlisted in the navy on March 13 and left home. There was evidence that he gave his wife $600 in cash, a written list of instructions relating to the conduct of the taxi business by the respondent, and a power of attorney on the Brookline Trust Company so that the respondent could draw checks on the checking account of the taxi business. No other paper was drawn or executed except a deed to the Braemore Road house.

From the evidence it appears that the deed to the Braemore Road house was drawn by the petitioner's attorney shortly after the conference of the parties on February 23, 1942, and was sent to the petitioner. The petitioner signed it and left it with his papers or, according to his testimony, "left that there in her care in case anything happened to me she would have it. . . . If I was killed in action or lost in action I left the deed there so my family would get the benefit of it." Q. "Did the giving of the deed have anything to do with the fact you had to show your wife was self supporting? A. Yes, it would have." The respondent testified that sometime after the petitioner left home she found the deed to the house among the papers of the taxi business and placed it among her own personal papers. The petitioner, after his return, found it and took possession of it. The respondent thereafter demanded its return through her attorney. The petitioner gave it to his attorney who then redelivered it to the respondent. The petitioner testified that it was delivered contrary to the instructions given his attorney. The respondent signed the deed on March 7, 1946, and caused it to be recorded in the registry of deeds on March 25, 1947. The deed is in evidence and bears the signatures of the two parties and an acknowledgment purporting to be that of the petitioner taken by his attorney, as notary public, under date of March 7, 1946. The petitioner testified that he never acknowledged it.

After March 13 1942, the respondent operated the taxi business and from the proceeds supported herself and daughter, paid the mortgage interest, insurance and taxes on the house, $1,212.06 on the principal of the mortgage, and the insurance and excise taxes on the taxicabs. She gradually replaced the seven taxicabs with new taxicabs, which she...