Montgomery v. Pickering

• Decision Date: 23 October 1874
• Citation: 116 Mass. 227
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Jane Montgomery v. Isaac H. Pickering & wife

116 Mass. 227

Jane Montgomery v. Isaac H. Pickering & wife

Supreme Court of Massachusetts

October 23, 1874

Suffolk. Bill in equity, filed June 18, 1873, against Isaac H Pickering and his wife, Sarah A., to compel the reconveyance of a parcel of land on Summer Street, Boston, and also the repayment of a sum of money obtained by the defendants from the city of Boston for land taken to widen Summer Street. The bill alleged fraud on the part of the defendant Isaac, and also that if there was no fraud the prayer of the bill should be granted on the ground of mutual mistake.

The case was heard on oral evidence before Endicott, J., who ordered a decree for the plaintiff, and the defendants appealed. The case came before this court on the pleadings and a report of the evidence. There appeared to be no controversy in regard to the following facts:

On January 2, 1873, the plaintiff owned on Summer Street Boston, a lot of land with the remains of a building thereon which had been destroyed by the great fire of the preceding November; and on that day the city passed an order taking 424 feet of the land to widen the street, and awarded her as damages at the rate of $ 20 a square foot for the land, and $ 500 for the buildings taken, amounting in all to $ 8980. There was then remaining 127 square feet. In February, 1873 the plaintiff agreed to sell the land to Isaac, and at his request, on the 12th of the month, executed a bond to the defendant Sarah for the conveyance to her, within two months of the entire lot on Summer Street, for $ 13 a square foot, "subject to any change in the streets the city may make." On the next day the parties executed a supplementary agreement by which it was provided "that in the event of the city taking any part of said land for the purpose of widening or changing streets, within the period named in said bond for a deed, and before the deed be given," Sarah should receive the damages therefor from the city. On February 25, 1873, the plaintiff gave to Isaac the following order, signed by her, on the city treasurer: "Please pay to Isaac H. Pickering $ 8980, the same being the amount awarded to me by the city for land taken to widen Summer Street by resolve of the board of street commissioners passed January 2, 1873;" and on the next day executed a deed to the city of the land taken and a release of all claim to damages, the consideration stated in the deed being $ 8980. The order and the deed were delivered to the city of Isaac, and on March 4, 1873, he was paid by the city the sum of $ 8980. After this and before April 15, following, Isaac caused a deed from the plaintiff to the defendant Sarah of the remaining land to be drawn, and called upon the plaintiff to execute it, tendering her at the same time the amount due for the entire lot at $ 13 a foot. The plaintiff at first refused to execute this deed, but subsequently notified the defendants that she was ready to do so, and on April 15, 1873, executed and delivered the deed to the defendant Sarah, and received the price agreed upon $ 7008. On the same day she brought an action of tort against the defendants for the same cause of action set forth in the bill in this case; but subsequently discontinued the action. At the time the bond and agreement, dated February 12, 1873, were made, the plaintiff was ignorant that the city had then taken the land. When the deed of April 15, 1873, was executed, she knew the facts and had taken legal advice as to her rights and obligations.

The principal questions of fact in controversy were whether the plaintiff, at the time she signed the order and deed to the city, knew that the city had taken the land before the bond and agreement were given; and whether the defendant Isaac knew that the city had taken the land when the bond and the agreement were given. The defendant Isaac contended that at the time the agreement of sale was made, and when the bond was executed, it was supposed by him and the plaintiff that the city would take the land, but that it was not known what would be paid, and that he bought it on speculation; and that the plaintiff was desirous of selling at the price agreed on in order to be sure of getting so much for the land.

Decree for the plaintiff with costs.

J. P. Treadwell, for the plaintiff.

R. M. Morse, Jr., for the defendants, to the point that if the contract was induced by fraud it was afterwards confirmed, cited De Montmorency v. Devereux, 7 Cl. & F. 188; Farnam v. Brooks, 9 Pick. 212, 224; Bradley v. Chase, 22 Me. 511; Pearsoll v. Chapin, 44 Penn. St. 9; Hanson v. Field, 41 Miss. 712. And to the point that the plaintiff had waived the privilege of her counsel not testifying, cited Commonwealth v. Mullen, 97 Mass. 545; Woburn v. Henshaw, 101 Mass. 193.

Colt J. Ames & Devens, JJ., absent.

OPINION

Colt, J.

The plaintiff seeks to set aside a deed of land made by her through the procurement of Isaac H. Pickering, to his wife, the other defendant, and to recover a sum of money paid by the city of Boston as damages for land of the plaintiff taken for streets. Both the deed and the money paid by the city to Pickering are alleged to have been obtained by fraud, and upon mutual...