Mason v. Daly

• Decision Date: 25 March 1875
• Citation: 117 Mass. 403
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Lyman Mason, executor, v. Hubert Daly & others

117 Mass. 403

Lyman Mason, executor, v. Hubert Daly & others

Supreme Court of Massachusetts

March 25, 1875

[Syllabus Material]

Middlesex. Bill in equity against Hubert Daly, Frances J Smith, Judson Murdock, Benjamin F. Brown, Charles H. Lewis and Almira H. Lewis, alleging the appointment by the Probate Court of the plaintiff as executor of the estate of John Lewis; that the said executor was authorized by decree of the Probate Court to sell the testator's real estate for the payment of debts; that the testator, during the last year of his life, was enfeebled in body and mind, and was thereby rendered incapable of transacting any business; "that while so enfeebled, Charles H. Lewis and Almira H. Lewis, one or both of them, for the purpose of defrauding and injuring the estate of the said John Lewis, and the rights of the devisees under his last will, unduly and unfairly persuaded the said John Lewis" to make a mortgage with power of sale of his homestead on November 11, 1870, to Murdock, which was duly recorded; that in the registry of deeds were records of the assignments of the mortgage from Murdock to Brown dated November 11, 1870; from Brown to Almira H. Lewis, dated September 11, 1871; from Almira H. and Charles H. Lewis to Daly, on July 31, 1872, as collateral security for the payment of $ 500, and also from Almira H. and Charles H. to Smith, on December 2, 1872, as collateral security for the payment of $ 500; that the mortgage, "if ever made by John Lewis, was made without his knowing what he was doing, or else was procured to be made by deception, fraud and undue influence;" that the assignments were made without consideration and with full knowledge on the part of the several assignees that the mortgage was fraudulent in its inception.

The bill further alleged that Daly had advertised the estate for sale under the power contained in the mortgage, and prayed for an injunction against Daly to restrain him from proceeding with the sale, and from assigning the mortgage; and also to restrain Smith from assigning the mortgage to her, and to compel Daly and Smith to assign the mortgage to the plaintiff, he offering to pay them whatever sums might be found to be lawfully due them; and for further relief.

Hearing upon bill, answer, replication and evidence, before Endicott, J., who, on September 25, 1874, made the following decree: "This cause came on for hearing, and being set down for hearing on the twenty-second day of September, A. D. 1874, and all parties being present, a hearing was had.

"It appearing to the court that the mortgage given by the plaintiff's testate to Judson Murdock, dated November 11 1870, was obtained from him fraudulently by Charles H. Lewis, one of the defendants, and that the money received thereon was never paid to the plaintiff's testate, but was used by said Charles for his own benefit and the benefit of the property of himself and Almira, his wife, and it further appearing that said mortgage was afterwards assigned to said Almira, and by her and her said husband assigned or pledged as collateral security to Hubert Daly, and to one Frances J. Smith. Whereupon and now, upon consideration thereof, it is ordered, adjudged and decreed that...