Kemp v. Kemp

• Citation: 142 N.E. 779,248 Mass. 354
• Parties: KEMP v. KEMP et al.
• Decision Date: 07 March 1924
• Court: United States State Supreme Judicial Court of Massachusetts

248 Mass. 354

142 N.E. 779

KEMP

v.KEMP et al.

Supreme Judicial Court of Massachusetts, Middlesex.

March 7, 1924.

Appeal from Superior Court, Middlesex County; P. M. Kealing, Judge.

Bill in equity by James Kemp against Clarence S. Kemp and another. From final decree for plaintiff, defendants appeal. Decree reversed, with leave to amend.

A. S. Allen, of Boston, for appellants.

D. H. Fulton, of Boston, for appellee.

BRALEY, J.

It is found on evidence not reported that the plaintiff, seventy-five years old, is the father of the defendants, a son and daughter by his first marriage. In 1911 he bought a parcel of land with the buildings, which was subject to a mortgage of four thousand dollars. But his first wife having died, he married again in May, 1912, and shortly thereafter differences arose between him and his wife, which becoming acute she left his home ‘within a few months after’ September, 1915. During the latter part of 1912, or early in 1913, he gave to the defendant Clarence S. Kemp certain mortgage notes of the aggregate value of about twenty-six hundred dollars, and to the defendant LaBelle Marie, moneys deposited in savings banks amounting to eleven hundred dollars. In making these gifts the plaintiff's purpose was, to put the property beyond the reach of his wife, and another daughter with whom he was not on friendly terms. The defendants in May, 1915, at the plaintiff's suggestion, and with his approval, used the proceeds of the gifts to pay the mortgages, taking an assignment to themselves. The plaintiff's wife however was seeking through counsel to obtain money for her separate support, and the negotiations for a settlement which followed, and were known to the defendants, contemplated the release of her inchoate rights of dower, and homestead, on payment of five hundred dollars. The defendants agreed orally with the plaintiff, that if he paid the amount and his wife signed a release, he then should convey the premises to them, to be held in trust for his benefit, and at his request they were to reconvey subject to the mortgage. It was also agreed, that he was not to be required to pay any part of the principal, or interest on the mortgage ‘so long as he should remain the owner of the equity in said real estate.’ The plaintiff settled with his wife, and received the release, whereupon he executed and delivered the deed in question to the defendants, to hold thereunder as ‘joint tenants and not as tenants in common.’ The conveyance is admitted in the original answer. But in their amended answer, the defendants further say, ‘that it was agreed and understood * * * that the plaintiff was, if he wished, to have the right to live in the premises conveyed, or a portion thereof so long as he lived; that he was also if he wished, to have the right to collect the rents for so long as he lived; that he was to pay the taxes, * * *’ but deny that they were to hold the property in trust. The buildings centained three apartments, one of which was occupied by the plaintiff, while he rented the other two, and the court finds that he continued in occupation after as well as before the delivery of the deed, made repairs, collected the rents, paid the taxes and insurance. The plaintiff requested the defendants to reconvey, but they refused, claiming that the property was a gift. It is plain on the findings, that there was no gift. The contract as mutually understood by the parties, enabled the plaintiff to obtain a valid release of his wife's inchoate right of dower, while he was to remain in possession, receive the rent, pay the taxes, and at his request the property was to be reconveyed to him. Flynn v. Flynn, 171 Mass. 312, 314, 50 N. E. 650,42 L. R. A. 98, 68 Am. St. Rep. 427. It has been fully performed as to the first two stipulations, and under the judge's findings, the only defense now relied on is, that the plaintiff is precluded from showing by parol evidence, that the defendants hold the property in trust.

It is true, that even if the relation between the parties is fiduciary in character, Story Eq. Jur. (13th Ed.) §§ 218, 309; Stahl v. Stahl, 214 Ill. 131, 73 N. E. 319,68 L. R. A. 617, 105 Am. St. Rep. 101,2 Ann. Cas. 774, and cases collected in note 777-779, the present record is insufficient to impose a constructive trust on the conscience of the defendants. They are not...