Macurda v. Fuller

• Decision Date: 12 December 1916
• Citation: 225 Mass. 341,114 N.E. 366
• Parties: MACURDA et al. v. FULLER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

225 Mass. 341

114 N.E. 366

MACURDA et al.

v.FULLER et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Dec. 12, 1916.

Appeal from Superior Court, Middlesex County; W. C. Walt, Judge.

Suit by William E. Macurda and others against Samuel A. Fuller and others. From an order sustaining a demurrer to the bill, plaintiffs appeal, and defendants Woodward appeal from an order denying their motion that the clerk be required to issue an execution forthwith against plaintiff for costs. Affirmed on plaintiffs' appeal, and defendants' appeal dismissed.

Fred E. Crawford, of Boston, for appellants.

Adams & Blinn and Amos L. Taylor, all of Boston, for appellees.

PIERCE, J.

The amended bill alleges that one Tower, January 29, 1902, conveyed the real estate therein described to one Mary H. Smith, to prevent its attachment in an anticipated action of tort for damages resulting from an accident whereby a child was run over by a carriage occupied by Tower and driven by his wife.

The bill alleges that Tower ‘had sufficient other money to meet any reasonable judgment which might be obtained against him,’ but does not state that he had sufficient other money or property that could be come at to be attached or taken on execution. The grantee had a mortgage on the premises conveyed to her to secure the payment of $5,000, which so far as appears, remains unpaid. With the delivery of the deed the grantee Smith signed, sealed and acknowledged an instrument with the name of the grantee in blank, describing the same premises simultaneously conveyed to her, and placed this deed, in pursuance of an oral agreement with Tower, in the costody of their common attorney, Samuel A. Fuller, with a parol direction to Fuller ‘to insert the name of said George A. Tower into said deed as grantee on the termination of said suit and to record the same.’

The action was tried and a verdict for the defendant was rendered January 25, 1903. For reasons that do not appear, final judgment for the defendant was not entered until February 1, 1907. Tower died on or before February 3, 1906, and Smith died on or about March 3, 1907. October 18, 1906, under a license of the probate court, the nature of which nowhere appears, the administratrix of the Tower estate sold to the petitioners the second parcel of the lots conveyed to Smith. February 19, 1907, the grantee Mary Smith conveyed to James B. Woodward who died intestate January 8, 1912, leaving a widow and one heir at law, the appellees, a portion of the parcel described in the deed of the administratrix. The bill charges Woodward, his widow and heir at law ‘with full notice and knowledge of all the facts set out in this [their] petition.’

Fuller ‘did not at the termination of the action and has not yet written the name of said George A. Tower as grantee in said deed of reconveyance and has not recorded the same, as directed by said Mary H. Smith.’

The prayers are, first, ‘That the respondent [Fuller] be directed to write in the name of said George A. Tower as grantee in said deed and to place the same on record;’ and, second, ‘And for such further relief as shall to the court seem proper.’ The respondent Woodward demurred.

November 2, 1914, an order was entered sustaining the demurrer.

December 17, 1914, a final decree was entered dismissing the bill. An appeal was taken to the order of November 2, 1914, but no appeal was ever taken to the final decree of December 17, 1914. The failure to take an appeal from the final decree was not the...