Southwick v. Spevak

• Decision Date: 22 May 1925
• Citation: 147 N.E. 885,252 Mass. 354
• Parties: SOUTHWICK v. SPEVAK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

252 Mass. 354

147 N.E. 885

SOUTHWICK

v.SPEVAK.

Supreme Judicial Court of Massachusetts, Suffolk.

May 22, 1925.

Appeal from Superior Court, Suffolk County; Morton, Judge.

Bill in equity by Francis A. Southwick against Myer Spevak to have resulting or constructive trust decreed in certain property, and that it be conveyed to complainant, and respondent enjoined from disposing of it. Demurrer to bill was sustained and final decree dismissing bill entered, and plaintiff appeals. Affirmed.S. W. Wagner, of Boston, for appellant.

Wendell P. Murray, of Boston, for respondent.

WAIT, J.

By his amended bill the plaintiff alleged that as one of the heirs of Homer H. Southwick he had an interest in real estate in Malden which was subject to a mortgage given by his ancestor; that he was in possession and had expended large sums in repairs upon the premises and had paid the taxes and interest upon the mortgage; that the premises were advertised for sale for breach of condition of the mortgage, and the defendant before the day fixed for the foreclosure sale represented that out of friendship for the plaintiff, he would bid in the property at the sale, advance the necessary money, take title, deed the property to the plaintiff and take in payment the plaintiff's note secured by a mortgage on the property; that, at the foreclosure sale, the defendant stated to those present at the sale that he was buying the property in for the plaintiff and thereby induced the plaintiff and others to refrain from bidding at the sale, in especial one whom the mortgagee had asked to bid in the interest of the plaintiff; that the property was struck off to the defendant for $1,580, much less than its real value; that the defendant paid the price bid and took a deed; that in all he did the defendant was acting with intentional fraud to secure the real estate for himself at less than its value; that before the filing of the bill the defendant refused to make conveyance to the plaintiff upon the latter's tender of a note and mortgage according to the agreement recited; and had bargained and sold the property for $4,200 to another. The prayers of the bill were that the court declare that the defendant held upon a resulting or constructive trust for the plaintiff; decree a conveyance to the plaintiff upon performance by him of the agreement set out in the bill; and, pending the proceedings, restrain any conveyance by the defendant.

The defendant demurred on the grounds that the bill set out no cause for equitable relief; that it did not join necessary parties; that while it sought to enforce a contract for the sale of land it did not aver any contract or memorandum in writing to satisfy the statute of frauds; and that the facts set out did not in law create a trust in the property in favor of the plaintiff. This demurrer was sustained and a final decree dismissing the bill was entered thereon. The plaintiff appeals.

[1] The demurrer was sustained rightly. The bill lacked necessary parties. The person to whom the property was alleged to have been bargained and sold was a necessary party, since the bill prayed a conveyance to the plaintiff. The apparent equity disclosed upon the allegations of the bill was to have the foreclosure sale set aside. The plaintiff's co-owners of the equity of redemption, and the mortgagee would be necessary parties to a bill for such a purpose.

[2][3][4] It is not good ground for demurrer that the bill did not aver that the agreements set out were in writing. Mullaly v. Holden, 123 Mass. 583; Cranston v. Smith, 6 R. I. 231. The defense of the statute of frauds, G. L. c. 259, § 1, and chapter 203, § 1, is an affirmative defense ordinarily to be raised by plea or answer (Whiting v. Dyer, 21 R. I....