Potter v. Kimball

• Decision Date: 21 June 1904
• Citation: 71 N.E. 308,186 Mass. 120
• Parties: POTTER et al. v. KIMBALL et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

186 Mass. 120

71 N.E. 308

POTTER et al. v. KIMBALL et al.

Supreme Judicial Court of Massachusetts, Essex.

June 21, 1904

COUNSEL

Alden P. White and Guy C. Richards, for appellants.

Ernest J. Powers, for appellees.

OPINION

MORTON J.

This case comes here on appeal by the plaintiffs from a decree sustaining the demurrer and ordering the bill to be dismissed. The grounds of demurrer were first the general one of want of equity, and then, in the order stated, laches, the statute of limitations, the statute of frauds, and a complete and adequate remedy at law. The ground or grounds on which the demurrer was sustained and the bill dismissed are not stated anywhere in the record, and there is no waiver on the part of the defendant of any of the causes of demurrer, though the defense principally relied on is that of laches. This renders it necessary to consider them all.

1. As to want of equity: It seems to us that, fairly construed, the bill states a case for equitable relief. It alleges, in substance, that, pursuant to an understanding between Potter and Kimball, the latter acquired title, through legal proceedings--first by a writ of summons and attachment, and then by a writ of entry--to the property in question for the purpose of holding it as security for what should appear upon a final settlement and accounting between Potter and himself to be due from Potter to him, and that Kimball continued to so hold the property during his life, and that after his death the widow and heirs so held it and treated it so long as Potter lived, and that the present holders of the title took it with full knowledge of all the facts and circumstances under which Kimball acquired and held the title, and that they dealt with the property on a like footing during Potter's lifetime. Without here going into a detailed analysis of the bill, or a recital of its various allegations, it seems to us, as we have said, that, fairly considered, this is what, in substance and effect, it alleges. So considered, the bill sets out a case in which the respondents hold the title by way of equitable mortgage in trust for the benefit of Potter's heirs upon being paid what upon a final accounting shall appear to be due. Campbell v Dearborn, 109 Mass. 130, 12 Am. Rep. 671; 1 Perry on Trusts (4th Ed.) § 166 et seq. The fact that in the summons and attachment suit the execution was returned satisfied by a levy on the property, and, in the writ of entry, execution for possession was issued, served, and returned, would not prevent the transaction from being treated according to its real nature--as a mortgage. Cullen v. Carey, 146 Mass. 50, 15 N.E. 131.

2. If the defendants hold the...