Rice v. Cunningham

• Decision Date: 05 January 1875
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: William Rice v. Walter R. Cunningham & another

116 Mass. 466

William Rice v. Walter R. Cunningham & another

Supreme Court of Massachusetts

January 5, 1875

Argued October 2, 1874 [Syllabus Material]

Worcester. Writ of entry, to recover a farm in Lancaster. Trial in the Superior Court, before Pitman, J., who allowed a bill of exceptions in substance as follows:

The farm was alleged to be held by the tenants by a title fraudulent as against the creditors of John Cunningham, the tenants' father. The tenants derived their title by deed from the said John Cunningham, bearing date November 28, 1871

The farm was subject to a mortgage, given by John Cunningham, at the time of this conveyance, which mortgage is still outstanding. Some years prior to November, 1871, John Cunningham had been in the habit of indorsing notes for the firm of Cunningham Brothers, which notes Cunningham Brothers were in the habit of getting discounted at banks, or of selling to individuals, and which, as they matured, were paid or retired by new notes of similar amounts and similarly indorsed. The firm of Cunningham Brothers consisted of three nephews of John Cunningham; and all notes indorsed by John Cunningham bore the prior indorsement of their father, whom John Cunningham testified he believed was a man of substantial property. The amount of these indorsements during all the time in question was about $ 4000, which amount was at all times outstanding against the partners down to August 4, 1872, when Cunningham Brothers failed, and shortly after instituted proceedings in bankruptcy. At this time the plaintiff was the holder of their note for $ 2400, indorsed by John Cunningham (some time after this conveyance), which matured September 5, 1872, and upon which he instituted a suit against John Cunningham, attached the farm in question obtained judgment, levied his execution upon the land, which was sold by the sheriff and bid off by the plaintiff, and this action was brought to recover possession of the premises, claiming title under the sheriff's deed. At the time of the failure of Cunningham Brothers, the said John Cunningham was indorser on their paper to the amount of $ 3700.

There was evidence tending to show that in November, 1871, the entire property of John Cunningham consisted of the farm in question and the stock upon it, all of which was valued by him at about $ 5000, a government bond of $ 500, and about $ 300 in the Savings Bank at Lancaster; that on November 28, he made and executed the deed to his two sons, the tenants; the eldest, Walter, being then about twenty-five years of age and the other about eighteen years of age; and he also, by a verbal agreement, sold to Walter all the stock, tools, implements, and personal property of which he was possessed, except the government bond and money in the savings bank, and the demandant contended that the evidence tended to show that the only consideration for these conveyances was that the tenants were to support their father and mother during their lives. The deed of the farm was not recorded until August 21, 1872, and there was evidence tending to show that from the time of that conveyance down to the time of the failure of Cunningham Brothers, John Cunningham continued to exercise acts of ownership and control over all this property conveyed, treating it as his own property, and that during all the time he continued to indorse for Cunningham Brothers, as he had before done, and that the notes he was liable on for them at the time of their failure were indorsed by him within four months prior to August 1, 1872. The tenants offered evidence to explain or control the effect of the demandant's evidence.

The demandant contended and argued to the jury that upon this evidence they would be warranted in finding that said property was conveyed to the sons upon a secret trust to support the said John and his wife during their lives, and asked the judge to rule that if it were so conveyed the conveyance would be void. The judge refused so to rule, but instructed the jury that, although this evidence unexplained, might be strong presumptive evidence of fraud, it would not warrant them in finding that the conveyance was upon a trust, as claimed by the demandant, unless there was something more than a mere promise to support the grantor and...