Rebelo v. Cardoso

• Decision Date: 16 June 1960
• Docket Number: No. 2774,2774
• Citation: 91 R.I. 153,161 A.2d 806
• Parties: Delfina REBELO v. Antonia R. CARDOSO et al. Eq.
• Court: Rhode Island Supreme Court

Page 806

161 A.2d 806

91 R.I. 153

Delfina REBELO v. Antonia R. CARDOSO et al.

Eq. No. 2774.

Supreme Court of Rhode Island.

June 16, 1960.

Corcoran, Foley & Flynn, Francis R. Foley, Pawtucket, for complainant.

Thomas F. Vance Jr., John A. O'Neill, Pawtucket, for respondents.

FROST, Justice.

This bill in equity was brought by the complainant Delfina Rebelo of the town of Cumberland against the respondents Antonia R. Cardoso and Jose R. Cardoso, both of the city of Central Falls, and Credit Union Central Falls, a corporation having a usual place of business in that city. The bill seeks to establish that a one-half interest in two certain parcels of land in Central Falls, the first situated on the westerly side of Broad street and the second on Jenks avenue, is held in trust by Antonia R. and Jose R. Cardoso for the use and benefit of the complainant, and prays for an accounting of the rents, profits and income of said real estate.

The cause was previously heard in this court on an appeal by complainant from the entry of a decree in the superior court sustaining respondents' demurrers. The appeal was sustained and the decree, so far as it sustained the demurrers and dismissed the bill of complaint, was reversed. See Rebelo v. Cardoso, 81 R.I. 360, 103 A.2d 80.

The complainant Delfina Rebelo died intestate on June 25, 1955 and on September 27, 1956 a decree was entered substituting John E. Rebelo, the administrator of her estate, as party complainant. On January 31, 1958 a decree was entered adding as party complainants John E. Rebelo in his individual capacity, Joseph Rebelo, Francis Rebelo and Celeste SanBento, being all the children and heirs-at-law of complainant.

Thereafter the cause was heard on bill, answers, replication and proof and a decree was entered granting the relief prayed for. From such decree an appeal was duly taken to this court by respondents Antonia R. and Jose R. Cardoso. Hereinafter they will sometimes be referred to as respondents.

It is alleged in the bill that on December 21, 1927 Maria S. Fernandes sold to complainant Delfina Rebelo and respondent Antonia R. Cardoso as tenants in common for $10,000 the above-mentioned parcels of land; that on December 29, 1928 Delfina and her husband and Antonia and her husband mortgaged the premises to Industrial Trust Company for $3,000; that respondents Cardoso occupied a portion of the premises by agreement with Delfina and her husband whereby said respondents undertook and promised to collect the rents and profits and to pay all bills including taxes, mortgage interest, water, fire insurance, etc., and to account to complainant; and that said respondents despite their agreement and without notice to complainant or her husband failed to pay the mortgage interest, whereupon the Industrial Trust Company advertised the premises and on May 16, 1935 sold the same to itself at public auction for $2,500.

It is further alleged in the bill that complainant's husband died on May 19, 1935; that she had no knowledge of the foreclosure proceedings; that on June 10, 1935 Industrial Trust Company conveyed the premises to Antonio A. Andrade, who gave a mortgage to Industrial Trust Company for $3,400; and that complainant was informed by Andrade that he was acting for respondents Cardoso who were the real purchasers.

It is also alleged that on June 27, 1935 complainant filed her bill of complaint against Antonia Cardoso, Joseph Cardoso and Antonio A. Andrade, which cause is on file in the superior court as Equity No. 13349 and was heard by a justice thereof; that no final decree was entered; that on October 6, 1949 a stipulation signed by counsel of record was filed; that the jacket entry for that date reads, 'Discontinued. No costs'; and that on June 21, 1950 a stipulation was filed, signed by the justice who heard the case, reading, 'the record of Dec. 11, 1935 is amended by adding words, 'and decision for respondent."

It is further alleged that by quitclaim deed dated February 5, 1941 Antonio A. Andrade conveyed the property to respondent Antonia R. Cardoso, also known as Antonia Nunes Cardoso, and that the deed contained the notation, 'The consideration for this deed is such that no revenue stamps are required.'

The bill also alleged that in the early summer of 1950 complainant was interviewed by an attorney for a bank who wanted her 'to sign off'; that she refused to do so; that later another attorney offered her $100 to sign a deed; that she again refused; that on July 12, 1950 respondent Antonia R. Cardoso mortgaged the premises to Credit Union Central Falls for $23,000; and that because of the offers made to her complainant consulted counsel and learned of the quitclaim deed dated February 5, 1941 given by Andrade to respondent Antonia R. Cardoso.

It appears from the testimony that on December 21, 1927 the premises in question were conveyed to Delfina Rebelo and Antonia R. Cardoso by Maria S. Fernandes; that the property consisted of a store with a back room and a small cottage in the rear; and that while such property was purchased by Rebelo and Cardoso, who were in partnership, the deed was taken in the names of their wives.

The attorney for complainant testified that he was first consulted by her on January 19, 1952; that she saw him several times thereafter; that she said the Cardosos occupied a portion of the property under an agreement whereby they promised to collect the rents and pay all the bills including taxes, mortgage interest and repairs; that she had no knowledge of the start of foreclosure proceedings; that she was not informed thereof until after the sale and her husband's death; that when she learned Andrade had bought the premises, she went to him and was told by him that he was acting for the Cardosos; and that they were the real purchasers.

Stephen A. Fanning testified that prior to October 1951 he was a practicing attorney and town clerk of the town of Cumberland that at some time prior to the date mentioned a woman and her daughter came to his office to assist him in straightening out a title; and that he offered the mother $100 for a quitclaim deed which she refused.

John Pereira, a cousin of complainant, testified that the latter told him she knew nothing of the foreclosure until a friend informed her of it; that she at once tried to get in touch with Cardoso but was unable to find him; that later she went to the Andrade home and Mrs. Andrade said the property was theirs in name only and that they did not own it; and that sometime afterward she saw Mr. Andrade who said the property was his. He also stated that he was with Mrs. Rebelo in the courtroom when the first case was being tried; and that when Andrade was coming out Mrs. Rebelo asked him why he lied and could say that the house belonged to him, to which he replied that he had to protect his own money.

The respondent husband testified that he was living in a three-tenement house with a little store in front; that this was the original location of the property concerning which they were having trouble; that originally he and complainant's husband bought the property for $12,500; that there was a store on Broad street with a back room and in the rear of that was a one-family house; that he occupied the house in the rear and was to pay $5 a week for rent; that both he and Rebelo paid the mortgage interest at first to Albert Fernandes; that later they paid the interest to Industrial Trust Company from the profits of the partnership business; that after the partnership broke up they began to get behind in their bills; that they rented to a barber; that the barber said Rebelo owed him money and he stopped paying some of the rent and credited it to Rebelo; that Rebelo said he did not care for the property any more; and that he got behind in the mortgage interest and taxes because Rebelo did not help any more.

Cardoso testified further that he received a notice from the bank that it was going to foreclose and he so informed Rebelo; that the latter was not present at the foreclosure but Cardoso saw him the same day and told him about it; that he had nothing to do with Andrade buying it; that he learned of the sale about two weeks after Andrade bought it; and that he remained on the property and paid $5 a week rent to Andrade and took care of the property. Cardoso also testified that later he sent for $900 from the 'old country' and used that with some money he had to buy the property from Andrade for around $3,000; that there was a fire; and that thereafter he spent $29,000 in rebuilding the property.

Andrade testified that he bought the property because he thought he could use it for his own business; that he sold it to Cardoso for the same...