McDonald v. Conway

• Decision Date: 12 January 1926
• Citation: 254 Mass. 429,150 N.E. 200
• Parties: McDONALD v. CONWAY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

254 Mass. 429

150 N.E. 200

McDONALD

v.CONWAY.

Supreme Judicial Court of Massachusetts, Hampden.

Jan. 12, 1926.

Appeal from Superior Court, Hampden County; Weed, Judge.

Bill by Hazel E. McDonald against Thomas J. Conway. From a decree of the superior court, confirming a report of the master and dismissing the bill, plaintiff appeals. Permission to amend within 30 days allowed, and decree affirmed, if amendment is not made as ordered.

J. B. Ely, W. C. Giles, and W. A. McDonough, all of Springfield, for appellant.

W. G. Brownson, of Springfield, for appellee.

WAIT, J.

The plaintiff and defendant own adjoining premises whose northerly boundary line extended a distance of about one hundred and sixty-seven feet from Pearl Street Court to Spring street in Springfield. Neither lot abutted on Winter street, a public highway which then ran into but did not cross Pearl Street Court. Early in 1924, a project was under consideration to extend Winter street easterly to Spring street, north of the lots of the plaintiff and defendant, and an agreement had been signed by the defendant and others who described themselves therein as ‘owners of property abutting on Winter street in said Springfield or property to be benefited by the proposed extension of Winter street to Spring street.’ This agreement bound the signers ‘to contribute to the cost of said extension and improvement an amount equal to ten dollars per front foot of our respective properties now facing on Winter street, or upon the proposed extension thereof.’ If accepted by the city, the sums paid were to be in lieu of any betterment assessment. The agreement was not to be effective unless work on the improvement began before August 1, 1924. It was dated January 18, 1924. The defendant wished to have the plaintiff execute this agreement, and took it to her in January or February, 1924, before the exact location of the proposed extension had been fixed and before any one knew whether it would or would not touch the land of the plaintiff, and to induce her to sign told her that in order to secure the extension it was necessary for her to join in the agreement, that her property, which would front on the extension, would be benefited, and that payment could be postponed, in part, for two years.

The defendant further said that there might be a strip of land about ten feet wide between their northerly property line and the southerly side line of the extension, that he wished to buy what lay between his line and the proposed street, and might be able to buy at better advantage if he bought the whole strip along her line as well as his, that he would buy the whole and buy for the plaintiff the part which abutted on her land. She said she had no means to pay for the assessment or for the additional land. The defendant said he would take care of the purchase price for the entire strip, and she could pay him the price of the part adjoining her land when she was able; she could have a period of years for repayment and could pay interest at five or five and one half per cent. He told her the strip adjoining her land would probably cost eight or nine hundred dollars and the assessment would be about four hundred eighty dollars. Relying on these statements and promises, and induced by them, the plaintiff signed the agreement in January or February, 1924.

The defendant had not then negotiated in any way for the purchase and did not know at what price or on what terms he could buy. Nothing was said in regard to the time at which the portion purchased should be conveyed, or whether the amount advanced as purchase money should be secured in any way.

The plaintiff and her husband did not appreciate the details involved in carrying through the transaction suggested, as the defendant, a man of greater business experience, knew.

The defendant, in July, after the location had been fixed and it was known that a strip of land about ten feet wide would be left between the new street and the northerly line of the lots, secured a contract for purchase of the entire strip. He told the plaintiff's husband that he would buy the part adjoining the plaintiff's land for her, and that it would cost when graded about eight hundred dollars. He obtained his deed about August 21, 1924, paying therefor two thousand dollars and the assessment upon the whole stiip, about seventeen hundred dollars more. Late in August he told the plaintiff that he had bought the entire strip and suggested that she sell him her land on Pearl Street Place. She said she supposed it was settled that he had bought the strip adjoining her land for her. Early in September the defendant declared he would not turn that land over to her. He made several attempts to induce a sale to himself of the plaintiff's premises, in substance threatening to use the strip so as to annoy her if she did not sell. In October after he had excavated in the strip close to the foundation walls of the plaintiff's house he was notified that the plaintiff claimed an interest in the strip and that excavation must stop.

The agreement signed by the plaintiff with the defendant and other owners of land affected by the proposed extension of Winter street was the only writing in existence relating to this transaction. The plaintiff has always been willing to carry out the transaction if she could, but at no time has she been able to do so from her own resources. The only change she has made in her condition since January, 1924, is to affix her signature to the agreement with the city.

The plaintiff brought her bill, claiming that ‘a resulting trust arose in her favor’; that she is equitable owner, ‘and that if the defendant has...