Sykes v. Keating

• Decision Date: 23 October 1875
• Citation: 118 Mass. 517
• Parties: Danford Sykes v. Catherine Keating
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

118 Mass. 517

Danford Sykes v. Catherine Keating

Supreme Court of Massachusetts

October 23, 1875

Hampden. Writ of entry, dated September 25, 1873, under the Gen. Sts. c. 103, § 48, to recover a parcel of land on Union Street, in Springfield, which was attached under the Gen. Sts. c. 123, § 55, as land of Munroe C. Heath standing in the name of Jane A. Heath. Plea, nul disseisin. The case was submitted to the Superior Court upon the following agreed statement of facts:

The demanded premises were conveyed by Munroe C. Heath to his father, William Heath, on December 11, 1871, and by William Heath to Jane A. Heath, on December 14, 1871, both conveyances being subject to a mortgage for $ 800 to the Springfield Institute for Savings, which mortgage was afterwards paid by Jane A. Heath, who on July 1, 1872 mortgaged the premises to Adeline Bestor. On December 18 1872, the demandant brought a suit against Munroe C. Heath upon a promissory note signed by him, dated November 2, 1872, and the officer who served the writ returned a special attachment of the demanded premises as real estate of Munroe C. Heath, standing in the name of Jane A. Heath, but the name of Jane A. Heath was not entered upon the attachment book in the clerk's office as required by the Gen. Sts. c. 123, § 56. In all other respects the attachment was properly made and a copy of the writ deposited. Judgment was obtained against Munroe C. Heath at March term 1873, of the Superior Court, and execution was levied upon the demanded premises May 1, 1873, within thirty days from the date of judgment, and they were sold under said execution in the following September to the demandant.

It is also agreed, if it is competent to be proved against the demandant's objection, that in the notice of said sale, published in the Springfield Daily Union, the premises were described as on Avon Street instead of Union Street, which said notice contained, among other things, the following description: "All the right in equity that Munroe C. Heath," &c., "certain mortgaged real estate lying in said Springfield, described as follows: a certain lot of land situate on Avon Street in said Springfield, bounded northerly by said street, east by land of one Pease, south by land of L. S. Taylor, and west by land of one Connor, being the same premises described in deed from William Heath to Jane Heath and recorded in Hampden County Registry of Deeds, book 285, page 487. The legal or recorded title standing in the name of Jane A. Heath, the same being fraudulently conveyed by the said Munroe C. Heath."

The land was in fact situated upon Union Street, and was so described in the officer's return and the other papers and proceedings relating to the attachment and levy. There was no such street in Springfield as Avon Street, and the description of the property was in other respects correct. There was, however, an avenue opening out of one of the streets called Avon Place, but the other portions of the description were not applicable to said avenue.

The tenant claims title to the demanded premises under a deed of warranty from Jane A. Heath, dated July 14, 1873, subject to the mortgage to Adeline Bestor, which she assumed as a part of the consideration. The conveyance was for an adequate consideration, and was taken in good faith and without any knowledge of the attachment of the demandant, or of the levy of his execution against Munroe C. Heath.

The conveyances from Munroe C. Heath to William Heath, and from William Heath to Jane A. Heath, were made and accepted with a view to prevent the conveyed property from being attached by the then existing and future creditors of Munroe C. Heath.

If the demandant, upon the above statement of facts, has shown a valid title as against the tenant, then judgment is to be entered for the demandant; otherwise for the tenant.

Upon the foregoing facts, Brigham, C. J., ruled that the demandant was entitled to recover, and ordered judgment for him; and the tenant alleged exceptions.

Exceptions overruled.

A. M. Copeland, for the tenant.

M. P. Knowlton, for the demandant.

Morton, J. Ames & Devens, JJ., absent.

OPINION

Morton, J.

The ground taken by the tenant,...