Malden Trust Co. v. George

• Decision Date: 07 July 1939
• Citation: 303 Mass. 528,22 N.E.2d 74
• Parties: MALDEN TRUST CO. v. GEORGE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

303 Mass. 528

22 N.E.2d 74

MALDEN TRUST CO.

v.GEORGE et al.

Supreme Judicial Court of Massachusetts, Middlesex.

July 7, 1939.

Suit by the Malden Trust Company against Arial W. George and others to reach and apply under G.L.(Ter.Ed.) c. 214, § 3(7), the interest of Sarah H. George in certain land and the interest of Sarah H. George under the terms of an agreement between Arial W. George and Sarah H. George, to a debt owed by Arial W. George and Sarah H. George. From an interlocutory decree sustaining demurrers to the bill, and a final decree dismissing the bill without prejudice, the plaintiff appeals.

Appeal from interlocutory decree as to record waived, interlocutory decree sustaining demurrers affirmed, and final decree affirmed.Appeal from Superior Court, Middlesex County; Morton, Judge.

S. H. Wellman and A. H. Wellman, both of Boston, for appellant.

G. Edmunds and F. J. Rogers, both of Boston, for appellee.

LUMMUS, Justice.

This is a bill to reach and apply, under G.L.(Ter.Ed.) c. 214, § 3(7). The debt owed by the defendants Arial W. George and his wife Sarah H. George is a balance upon a mortgage note after the foreclosure of the mortgage. Demurrers of the several defendants to the bill were sustained, and the plaintiff appealed. From the consequent final decree dismissing the bill without prejudice, the plaintiff likewise appealed.

The plaintiff asserts, with strong indication in the record of the truth of the assertion, that the defendants answered as well as demurred, and that the facts were heard by a master who filed a report. That report was not confirmed, and without confirmation it settled nothing. North Carolina Railroad Co. v. Swasey, 23 Wall. 405, 410, 23 L.Ed. 136. Under Rule 28 of the Superior Court (1932) demurrers and answers in equity are normally filed at the same time, if not indeed included in the same document, and under that practice an answer cannot operate as a waiver of a demurrer. Fogg v. Price, 145 Mass. 513, 14 N.E. 741. A demurrer may be filed even after answer, by leave of court. Rule 28 of the Superior Court (1932); Equity Rule 8 (1926; 252 Mass. 603);Keown v. Keown, 231 Mass. 404, 405, 121 N.E. 153. The plaintiff contends that going to hearing before the master waived the demurrers. That may be the effect of voluntarily proceeding before a master without first setting down a demurrer for hearing. Fairbanks v. Newhall, 222 Mass. 598, 600, 111 N.E. 385;Attorney General v. Onset Bay Grove Association, 221 Mass. 342, 346, 109 N.E. 165;Berenson v. H. G. Vogel Co., 253 Mass. 185, 187, 148 N.E. 450;Luciano v. Caldarone, 255 Mass. 270, 272, 151 N.E. 70. But in this case the record does not disclose that the defendants went before the master voluntarily, without first seeking to have their demurrers heard. The judge may have compelled them to try the merits first, as in his discretion he had a right to do. If so, the demurrers were not waived. Pearson v. Mulloney, 289 Mass. 508, 511, 194 N.E. 458.De Veer v. Pierson, 222 Mass. 167, 174, 110 N.E. 154. The plaintiff's appeal from the order that the answers and the master's report be omitted from the record for appeal as immaterial has not been argued and is therefore waived.

What the bill sought to reach was declared to be ‘the interest of said Sarah H. George in’ certain land and ‘the interest of said Sarah H. George under the terms of’ a certain agreement between Arial W. George and Sarah H. George through the defendant Cudworth as trustee dated July 12, 1935.

Arial W. George and Sarah H. George were then living appart. The agreement contemplated the conveyance by Sarah H. George of her land in Scituate to Cudworth as trustee. The conveyance was actually made about August 1, 1935. The trustee agreed to convey the land back to her ‘on her request,’ but in the absence of such request in her lifetime he was to convey it to such person as she should appoint by...