Sundlun v. Volpe, 1454.

• Decision Date: 15 November 1939
• Docket Number: No. 1454.,1454.
• Parties: SUNDLUN v. VOLPE et al.
• Court: Rhode Island Supreme Court

9 A.2d 41

SUNDLUN

v. VOLPE et al.

No. 1454.

Supreme Court of Rhode Island.

Nov. 15, 1939.

Appeal from Superior Court, Providence and Bristol Counties; Alberic A. Archambault, Judge.

Suit by Walter I. Sundlun against Louis Volpe and others to set aside a conveyance and for other relief. From an adverse decree, Bernard B. Abedon appeals.

Modified and as modified affirmed.

Sigmund W. Fischer, Jr., and Baker & Spicer, all of Providence, for complainant.

Morris S. Waldman and Maxwell W. Waldman, both of Providence, for respondent.

MOSS, Justice.

This is a suit in equity, brought by a judgment creditor of the respondent Louis Volpe, in which the principal relief prayed for is that certain real estate, which is situated in the town of North Providence in this state and on which execution had been levied under the complainant's judgment, be declared to be the property of that respondent and subject to such levy of execution; and that a certain deed and purported conveyance of such real estate and a certain mortgage deed thereof be declared null and void.

The complainant joined as respondents, with Louis Volpe, the latter's mother, Annie Volpe, who was the grantor in that deed, Bernard B. Abedon, the grantee therein, and Martha E. Olmstead, the mortgagee in the abovementioned mortgage, which was made of this real estate by the respondent Abedon and the validity of which is also attacked in this cause. This mortgagee was served only by publication, not being a resident of this state. She never entered any appearance or filed any pleading; and no decree pro confesso was entered against her.

On August 3, 1925 this real estate, together with an adjacent parcel, the present title to which is not now questioned in this cause, was conveyed by the then owner of both parcels to Annie Volpe, who on September 17, 1925, executed and acknowledged a deed of them to her son Louis. This deed was never recorded; but on March 2, 1934 a certain safe deposit box, of which these two persons were then lessees, either or both having access to it, was examined, having been attached on February 10, 1934 in an action brought by the complainant on his abovementioned judgment; and this deed, in its original form, was then found in this box. With it was found another deed of the same real estate, signed and acknowledged by Annie Volpe on November 5, 1931, but with no grantee named therein. The complainant alleged in Kis bill of complaint, and still contends, that Louis Volpe by the former of these two deeds became the owner of the real estate first-above mentioned.

The action just above mentioned was begun by the complainant against Louis Volpe by a writ issued February 9, 1934 and served on the latter February 12, 1934. On the next day after this service, the deed above mentioned from Annie Volpe to the respondent Abedon was executed and acknowledged by her, and duly delivered and filed for record.

Each of the respondents, other than Martha E. Olmstead, filed an answer to the bill of complaint. In his answer Louis Volpe denied any previous knowledge of the two deeds found in the safe deposit box as above stated, and averred that he never received delivery of either of them and never considered himself the owner of the premises therein described.

The respondent Annie Volpe in her answer admitted that she executed these two deeds, but denied that either of them was ever delivered or was to have any effect during her life. She admitted the abovedescribed conveyance to the respondent Abedon, which she asserted was made for a valuable consideration; and she denied that at the time it was made she had any knowledge of the complainant's action against the respondent Louis Volpe.

The respondent Abedon in his answer asserted that Annie Volpe's conveyance to him, on February 13, 1934, of the real estate in question was for a legal and valuable consideration. He denied that Louis Volpe owned that real estate, and that any prior conveyance of that real estate was made by Annie Volpe to Louis Volpe, and that he himself had any knowledge of such a prior conveyance.

When the cause was first heard on bill, answers and replication before a justice of the superior court, counsel for the respondents, at the conclusion of the evidence for the complainant and without closing the case of the respondents, made a motion that the bill be dismissed; and this was granted by this justice on the ground that the complainant had failed to prove that the real estate in question had ever belonged to Louis Volpe.

A decree was entered accordingly and the cause later came before this court on the complainant's appeal from that decree. After a hearing on that appeal, it was sustained and the decree reversed on the ground that it was not proper procedure, at a hearing in the superior court of a cause in equity on its merits, for the court to entertain and pass upon such a motion to dismiss, made as it was, by the respondents without closing their case, after the analogy of a motion for a nonsuit made by the defendant in an action at law.

The cause was accordingly remanded to the superior court for the completion of the evidence, if the respondents should desire to introduce any, and for the formal closing of the whole cause, before the same justice who had already heard it in part, and for the entry of a new decree based upon all the evidence. Sundlun v. Volpe, R.I., 2 A. 2d 875.

Afterwards the cause was further heard before the same justice. The respondent Annie Volpe had meantime died without having given any testimony. At the later hearing the other respondents introduced testimony by a man who for fifteen years last past had been the identification clerk in the safe deposit department of the bank in which was the safe deposit box above mentioned. He testified that Annie Volpe became tenant of the box with Louis Volpe on July 27, 1928, the latter having up to that time been the sole tenant and having the only right of access to the box; that according to the recollection of the witness she had gone to the box with Louis Volpe about five times and that so far as he knew, and according to the records of the bank, she had never gone to it alone. The records of the bank supported this last fact.

Testimony for the respondents was also given by Louis Volpe and Abedon; and testimony in rebuttal was given by the complainant. Then, the evidence being closed, the trial justice discussed it and found from it that it showed that the unrecorded deed from Annie Volpe to Louis Volpe, dated September 17, 1925, was made about six weeks from the date when the same property was conveyed to her; that then and for nearly three years afterwards Louis Volpe was sole tenant of the safe deposit box in which this deed was later found.

He also found, from uncontradicted evidence, that on November 24, 1924, Louis Volpe conveyed to his mother, by a deed duly recorded, a parcel of real estate in the city of Providence belonging to him and that on the same date she executed and acknowledged a deed back to him of the same real estate, which deed was never recorded. Louis Volpe's explanation was that he had borrowed $2,700 from her and had conveyed that property to her as security; and that she had told him about the deed back to him and said that when he repaid her she would return the property to him. Except his own unsupported testimony, there was no evidence of any loan of money to him by her.

Both of these deeds and a deed of the same property signed and acknowledged by her on November 5, 1931, but with no grantee named, were found in the safe deposit box, when its contents were examined and the deeds of the North Providence property were found, as above stated. This Providence property also was deeded by Annie Volpe to the respondent Abedon by a deed executed, acknowledged and recorded on February 13, 1934, when the North Providence property was similarly...