Johnson v. Czeikus

• Decision Date: 27 November 1934
• Citation: 288 Mass. 428
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: OLIVER A. JOHNSON v. MICHAEL T. CZEIKUS & others.

288 Mass. 428

OLIVER A. JOHNSON v. MICHAEL T. CZEIKUS & others.

Supreme Judicial Court of Massachusetts, Suffolk.

November 27, 1934

October 23, 1934.

Present: RUGG, C.

J., CROSBY, PIERCE FIELD, & LUMMUS, JJ.

Equity Pleading and Practice, Findings by judge. Evidence, Presumptions and burden of proof.

Upon appeal in a suit in equity, without a report of the evidence, findings of fact made by the trial judge upon oral testimony will not be disturbed unless they are plainly wrong.

Where, upon such an appeal, the trial judge embodied in the report of his findings the testimony upon which the appellant largely relied and which was uncontradicted, no ground appeared for disturbing a finding contrary to such testimony: it was evident that the judge did not credit such testimony, and he was not required to do so.

BILL IN EQUITY filed in the Superior Court on April 27, 1933. The suit was heard by Whiting, J. Material findings by him are stated in the opinion. A final decree in favor of the plaintiff was entered. The defendants appealed. The evidence was not reported.

The case was submitted on briefs. M. M. Lewis, for the defendants.

R. J. Cotter, G.

B. Rowell, & G.

P. VanArkel, for the plaintiff.

CROSBY, J. This is a bill in equity brought by the plaintiff as holder of three notes given by the defendants Michael T. Czeikus and Elizabeth G. Czeikus (herein called the principal defendants) to Samuel W. Johnson, the plaintiff's predecessor in title. It is alleged in the bill that each note was in the sum of $4,000 and was secured by a mortgage upon certain real estate in Boston. Each note provided for quarterly payments of not less than $40 with interest at seven per cent per annum. The bill further alleges that payments were made on the notes to November 1, 1932; that on February 8, 1933 payments being in default, the plaintiff entered on the several premises for the purpose of foeclosing the motgages; that the foeclosues left a deficiency on each note. The bill is brought to reach and apply certain other property of the principal defendants which had been conveyed by them to their son, the defendant Vito M. Czeikus. These conveyances, the bill alleges, were made without consideration and for the purpose of preventing the payment of any deficiencies to which the plaintiff might be entitled in connection with the foreclosure of the mortgages.

It was alleged in the answer of the principal defendants that the property subject to mortgage was conveyed to one Justinas Andrusiunas and his wife on August 20, 1927; that said defendants believed that the mortgages had been satisfied in full and had no knowledge of the foreclosure until the bringing of the bill; that the purchaser at the sale was merely a "straw" for the plaintiff; and that the consideration received at the foreclosure sale was inadequate. The answer was later amended and alleged that after the sale to Andrusiunas and his wife a binding agreement was entered into between Samuel W. Johnson, the plaintiff's predecessor in title, and Andrusiunas and his wife whereby the terms of the indebtedness due under the mortgages were changed to the detriment of the defendants. The plaintiff denied that any such agreement had been made.

"It was agreed at the trial that the property sought to be reached and applied was conveyed by the principal defendants under such circumstances that it could be reached and applied for the purpose of satisfying...