Kerrigan v. Fortunato
| Decision Date | 29 December 1939 |
| Citation | 24 N.E.2d 655,304 Mass. 617 |
| Parties | KERRIGAN v. FORTUNATO et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Suit by Mary A. Kerrigan against Giuseppe Fortunato and others to have certain conveyances declared void, and for other relief. From a decree for plaintiff, defendants appeal.
Reversed.Appeal from Superior Court, Suffolk County; Brogna, Judge.
G. Locus, of Boston, for plaintiff.
M. Singer, of Boston, for defendants.
This is a suit in equity. It is alleged in the bill that the plaintiff is a judgment creditor of the defendant Giuseppe Fortunato, in an action at law in which execution issued on January 19, 1937, for damages and costs aggregating $1,011.35; that the defendant Giuseppe was the owner of certain real estate numbered ‘259 and 257’ Havre Street, East Boston; that shortly after the recovery of judgment by the plaintiff against the defendant Giuseppe, the latter conveyed both parcels to the defendant Joseph Fargone without consideration, who, on the same day, conveyed the premises to the defendant Maria Fortunato, the wife of Giuseppe, in her own right; that the title now stands in her name; that she paid no consideration therefor; and that the conveyances were made solely for the purpose of depriving the plaintiff of access to the assets of Giuseppe, and were fraudulent and consummated for the ‘sole purpose of placing said assets of the judgment debtor beyond the reach of the judgment creditor.’ The pertinent prayers of the bill are that the conveyances to Fargone and Maria Fortunato be declared null and void and that the latter be ordered to convey the parcels involved to the defendant Giuseppe Fortunato. The defendants Giuseppe, Maria and Fargone answered denying the allegations of the bill with the exception of the one reciting that the defendant Giuseppe ‘was' the owner of the real estate involved.
The evidence was taken by a stenographer. The plaintiff was called as a witness by her counsel, and the only testimony given by her was that, some time in 1936, she brought an action against ‘one Fortunato’ for personal injuries and ‘received judgment in the East Boston court.’ She was not cross-examined. Her counsel then put in evidence a certified copy of the docket entries of the East Boston District Court relating to the action before referred to, and certified copies of four deeds of conveyance of property numbered 259 and 261 Havre Street, East Boston. The plaintiff then rested. The defendants also rested, but thereafter, in answer to a question put by the judge, the defendants' counsel stated that the ‘accident’ [sic] was still unsatisfied ‘as far as * * * [he knew].’ The copy of the docket entries and the copies of the deeds before referred to were marked as exhibits and are before us. The docket entries of the court in which the plaintiff obtained judgment disclose that the writ was entered on March 28, 1936, that judgment was obtained against the defendant Giuseppe Fortunato on December 24, 1936, and that execution was issued on January 19, 1937.
The certified copies of the deeds of conveyance of the premises numbered 259 Havre Street show that a deed dated March 15, 1937, in which the defendant Giuseppe conveyed those premises to Joseph Fargone, subject to certain mortgages, was recorded in the Suffolk registry of deeds on March 17, 1937; the defendant Maria released her ‘rights of dower and homestead and other interests therein.’ On the same day, immediately following this conveyance, a deed of Fargone to the defendant Maria, dated March 15, 1937, was recorded in the registry of deeds. So far as appears, when the defendant Giuseppe conveyed this parcel to Fargone the title stood in the name of Giuseppe. In each of these deeds the consideration is recited to be less than $100.
The deeds of the premises numbered 261 Havre Street were under the same date, and...
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First Federal Sav. & Loan Ass'n of Galion, Ohio v. Napoleon
...that may still be decided under the old one. In the Eliot Discount case, Justice Fine noted that this court in Kerrigan v. Fortunato, 304 Mass. 617, 24 N.E.2d 655 (1939), had assumed that the burden of proving insolvency was on the person seeking to set aside the conveyance under the UFCA, ......
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Dragone v. Dell'Isola
...stand in the light of the other reported facts. Fraud or bad faith is not to be presumed but must be proved as a fact. Kerrigan v. Fortunato, 304 Mass. 617, 24 N.E.2d 655. Cohen v. Santoianni, 330 Mass. 187, 112 N.E.2d 267. The owner cannot act in bad faith, and that means that he cannot re......
- Kerrigan v. Fortunato