Roper v. Murphy

• Decision Date: 25 October 1944
• Citation: 317 Mass. 176,57 N.E.2d 569
• Parties: ROPER v. MURPHY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

317 Mass. 176

57 N.E.2d 569

ROPER

v.MURPHY.

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 25, 1944.

Bill in equity by Marcellus Roper against Mabelle Fellows Murphy, administratrix of the estate of Herbert F. Roper, deceased, to compel the administratrix to convey to plaintiff certain realty and to establish indebtedness of deceased to plaintiff on a note. From an interlocutory decree overruling a demurrer to the bill and from a final decree for plaintiff, defendant appeals.

Interlocutory decree reversed with direction to enter decree sustaining the demurrer. Final decree reversed.Appeal from Superior Court, Worcester County; Donnelly, Judge.

Before FIELD, C. J., and QUA, DOLAN, WILKINS, and SPALDING, JJ.

H. R. Sher, of Worcester, for plaintiff.

M. F. Murphy and F. P. McKeon, both of Worcester, for defendant.

DOLAN, Justice.

This is a bill in equity by which the plaintiff seeks to compel the administratrix of the estate of Herbert F. Roper to convey to him certain real estate and to establish the indebtedness of the intestate to him on a demand note for $1,900. The bill was brought originally against Annie H. Roper, the administratrix of the estate of the intestate. Upon her death the administratrix de bonis non of his estate was substituted as the party defendant.

Material allegations of the bill, as amended, are that in 1919 the plaintiff purchased the land in question from the intestate for $150, which was paid; that the intestate thereupon signed, executed and delivered a deed of the land to the plaintiff; that the plaintiff then gave the deed to the intestate who was to record it; that the plaintiff has been in possession of the land ever since, and in December, 1942, discovered that the deed had never been recorded; and that in 1933 the intestate, who was indebted to the plaintiff for large sums of money, made a promissory note to the plaintiff in the sum of $1,900 which the intestate did not pay although the plaintiff requested him to do so. The defendant demurred to the bill, assigning as causes of demurrer that the plaintiff states no cause in equity against the defendant and that the plaintiff has a plain, adequate and complete remedy at law. The defendant also answered. The judge entered an interlocutory decree overruling the demurrer, and after hearing filed findings that the amount of the note with interest at six per cent was due from the estate of the intestate and that the plaintiff is the real owner of the land in question and entitled to a deed from the defendant administratrix, and entered a final decree adjudging that the debt due to the plaintiff is $1,900 with interest in the sum of $1,210.30 and ordering that the defendant administratrix convey the premises in question to the plaintiff by a good and sufficient quitciaim deed free from all encumbrances within twenty-one days from the ‘day of the allowance of final decree.’ The defendant appealed from these decrees.

The demurrer should have been sustained. The facts alleged in the bill do not make a case for specific performance of an agreement on the part of the intestate to convey real estate, or a case where the intestate held real estate which by operation of law is subject to be conveyed to others within the meaning of G.L.(Ter.Ed.) c. 204, § 1. See Derby v. Derby, 248 Mass. 310, 313, 314, 142 N.E. 786. The case presented by the allegations of the bill is one of a lost deed with record...