Murphy v. Hanright

• Decision Date: 10 March 1921
• Parties: MURPHY v. HANRIGHT et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

238 Mass. 200

130 N.E. 204

MURPHY

v.HANRIGHT et al.

Supreme Judicial Court of Massachusetts, Middlesex.

March 10, 1921.

Exceptions from Land, Court, Middlesex County; C. T. Davis, Judge.

Petition for registration of title to land by Clara F. Murphy against Lena G. Hanright and others, resulting in judgment dismissing the petition, and petitioner excepts. Exceptions overruled.

Warner, Stackpole & Bradlee, of Boston (Clifton L. Bremer, of Boston, of counsel), for petitioner.

James J. McCarthy and A. Francis Harrington, both of Boston, for respondents.

JENNEY, J.

In December, 1907, Dennis Murphy was the owner of a parcel of land with buildings thereon in Wakefield, Massachusetts. By deed dated August 10, 1908, he conveyed it to his son, Thomas Murphy, to hold for the life of the son upon the express condition that he (the grantee) should pay to the grantor $36 each month, and that if the grantor predeceased his son, then to the son in fee. Thomas Murphy reconveyed the property to his father by deed dated December 13, 1911, and recorded March 12, 1912.

In December, 1912, there was recorded a deed in fee from the father to the son which was dated August 10, 1908, and acknowledged on September 8, 1908. It should be remembered that after the date of the acknowledgement of this deed, but before its record, Thomas had reconveyed to his father by a deed duly recorded before the record of the second deed from Dennis to Thomas.

The judge who heard the case in the land court upon a petition for registration of title found that, in 1908, the father had had trouble with one Julia Murphy who had threatened to sue him, and that he had been advised to put his property in the name of the son to prevent attachment; that in November, 1908, he was sued and an attachment made; that the suit in which the attachment had been made was settled in 1912; and that the father, who could not read, thereafter desired to get his property back, and knew that the deed of his son given to him in 1911 had not been signed by his son's wife (who is the present petitioner), and asked for another deed containing a release by her.

The son testified that his father, in 1912, stated his desire that he (the son) should have full title after his father's death, and informed him that he had recorded the deed drawn in 1908 but not then delivered. The judge found that this deed, which was recorded in 1912, was not delivered in 1912 as a present conveyance of title. This is a finding of fact and not a ruling of law. See Garden Cemetery Corporation v. Baker, 218 Mass. 339, 105 N. E. 1070, Ann. Cas. 1916B, 75. The findings that there were no delivery and acceptance of the deed in 1908, when it was executed, or thereafter in 1912, when it was recorded, must stand. The bill of exceptions, including as a part thereof the judge's findings, does not purport to include all the evidence. If the deed had been delivered when executed, the title thereunder would have antedated the deed of Thomas to his father dated December 13, 1912. In that contingency the rights, if any, of the son thereunder would have revested in his father by said deed.

Although Thomas then was left without any interest in the premises, in September, 1915, he gave another deed to his father in which dower and homestead were released. This deed was drawn on the ordinary warranty deed blank and is thus described in the decision of the land court:

‘At the end of the description is the following recital: ‘Said Dennis Murphy to have above named property during his natural life, receiving whatever revenue there is from it and on the death of said Dennis Murphy the above mentioned property reverts back.’ Then followed a clause providing for mortgaging with the written consent of Thomas, which clause, however, was stricken out. Then follows the ordinary habendum clause, in which the name ‘Thomas' had been inserted and then erased, and the name ‘Dennis' written in in its place, so that the habendum reads, ‘to Dennis Murphy and his heirs and assigns to their own use and behoof forever.’ Then follow the usual covenants of a warranty deed, and a release of dower and homestead by the present petitioner.'

The judge ruled that if this deed conveyed anything, it vested in the father a ‘life estate only.’ No exception was taken to this ruling; and as it constitutes the law of the case, the deed must be so construed in considering the findings made.

The father died testate in 1918, leaving pecuniary legacies to the son and others, and devising the rest and residue of his property, which included whatever title he had to the land in controversy, to his daughter Mary. In 1919 Thomas gave a deed of the property to one Cade and later, in the same year, Cade conveyed it to the petitioner. These deeds were without pecuniary consideration.

In order to give any effect to the deed of the father recorded in 1912, it must have been delivered at some time. Upon evidence not before us in its entirety, the court denied the petition for registration. To maintain that petition, it was necessary, on the judge's ruling as to the construction of the deed of 1915, to find that the deed recorded in 1912 was delivered after the date of its record. On conflicting evidence, this was a question of fact. Parrott v. Avery, 159 Mass. 594, 35 N. E. 94,22 L. R. A. 153, 38 Am. St. Rep. 465. The order of dismissal imported a finding of facts necessary to uphold it and consistent with the express findings made. Hastings v. Merriam, 117 Mass. 245;Adams v. Dick, 226 Mass. 46, 115 N.E. 227;Prentiss v. Gloucester, 236 Mass. 36, 127 N. E. 796.

A deed may remain undelivered, although it has been recorded. Maynard v. Maynard, 10 Mass. 456, 6 Am. Dec. 146;Powers v. Russell, 13 Pick. 69;Samson v. Thornton, 3 Metc. 275,37 Am. Dec. 135;Hawkes v. Pike, 105 Mass. 560, 7 Am. Rep. 554;Barnes v. Barnes, 161 Mass. 381, 37 N. E. 379. A delivery, however, may be established after such record. Parker v. Hill, 8 Metc. 447. The issue of delivery is ordinarily one of fact. Mills v. Gore, 20 Pick. 28. This question depends on the acts...