Sunter v. Sunter , 190 Mass. 449 ( 1906 )

Braley, J.

Unless the defendant is a purchaser for value, and without notice of the infirmity of his mother’s title, as against the plaintiffs he holds by no better right the land described in the bill. Wyman v. Hooper, 2 Gray, 141, 145. In equity the consideration must be valuable as distinguished from that which is merely moral or equitable, or imported from the nature of a sealed instrument, though it need not be pecuniary, or equal to the value of the property conveyed. Bullock v. Sadlier, Ambl. 764. Patten v. Moore, 32 N. H. 382. Wood v. Robinson, 22 N. Y. 564, 567. Price v. Jenkins, 5 Ch. D. 619. Bean v. Anderson, 7 Stew. (N. J.) 496, 508.

But if the defendant is found by the master to have neither paid money, nor parted with other property for her conveyance to him, he relies on a clause in the deed by which he agreed to support her during the remainder of her life.

This defence is devoid of merit, for it is shown in the report by the defendant’s own testimony, that the conveyance was made out of gratitude for his care and kindness to her in the past, as well as upon his promise to care for her in the future, and during the few months elapsing between the date of the deed and that of her death she was not in fact supported by him though he expressed his willingness to have done so if required.

. Upon these findings the master’s final ruling that as between the parties the agreement to furnish her with maintenance could not be considered a valuable consideration, and that the conveyance being purely voluntary let in the plaintiffs to their equitable rights in the land, if they chose to assert them, was well warranted and must be sustained. Dow v. Jewell, 18 N. H. 340. Padgett v. Lawrence, 10 Paige, 170. The case is thus left to be considered as if the title had remained in her when as the probate guardian of the parties she personally acquired the estate through an intermediary at a sale made by herself acting in a fiduciary capacity.

While it is significant that the master finds although she was duly licensed to sell the property for the maintenance of her wards, in reality she sold and obtained title for her own benefit, yet if the purchase by her had been for a fair price, or to prevent a sacrifice of the land, the transaction equally would have been voidable by them. Walker v. Walker, 101 Mass. 169, 172. Goodell v. Goodell, 173 Mass. 140, 146. Hayes v. Hall, 188 Mass. 510.

A sale by herself officially to herself individually was not absolutely void, for if the wards upon coming of age, and with knowledge of the transaction had been content to let the conveyance remain unimpeached the title would have remained absolutely in her. Jones v. Dexter, 130 Mass. 380, 383. Morse v. Hill, 136 Mass. 60. But as the plaintiffs have elected to avoid, the defendant claims that the delay of which they have been guilty since attaining their majority shows their acquiescence, and the bill cannot be maintained. Until of age acquiescence could not be imputed, nor could they be affected by the uncommunicated knowledge of their mother and guardian that she had appropriated the property. Denholm v. McKay, 148 Mass. 434, 441, 442.

If a cause of action accrued entitling them to have the transfer set aside when she unlawfully acquired title, the plaintiffs were under the disability of infancy, and could not assert their right. Under Pub. Sts, c. 196, § 5, now R. L. c. 202, § 24, they had a period of ten years after reaching their majority in which to do so, but this time expired without any action being taken by them, because after attaining full age, and until their mother’s death, the plaintiffs are found to have been ignorant of her conduct, though almost immediately upon such discovery they brought this bill. If in equity, or at law, the statute of limitations began to run when they ascertained the fraud that had been practised upon them, they are not thereby barred, and if in equity independently of the statute a delay had ensued which might have made the claim stale, and hence unenforceable, they are found to have exercised reasonable diligence. Farnam v. Brooks, 9 Pick. 212, 245. Evans v. Bacon, 99 Mass. 213, 215. Sawyer v. Cook, 188 Mass. 163. Prevost v. Gratz, 6 Wheat, 481. Twin-Lick Oil Co. v. Marbury, 91 U. S. 587, 592.

When their mother took possession the land was unimproved, and at her own expense she built thereon a dwelling house, the cost of which the defendant now claims should be allowed to him as an improvement, but the master in stating the account declined to allow the benefit of this expenditure, and the exception of the defendant to this ruling raises the most important and difficult question in the case.

At common law compensation was not awarded for improvements to the freehold even when made in good faith by one in possession claiming ownership, but who ultimately was found to have no title as against the true owner. Russell v. Blake, 2 Pick. 505, 507. Marshall v. Crehore, 13 Met. 462, 468.

But this doctrine, in many cases harsh and inequitable, was ameliorated by the St. of 1807, c. 75, now embodied in R. L. c. 179, § 17, and since this enactment where the land demanded has actually been held and possessed by the tenant, or his predecessor for six years, he becomes entitled to betterments whether annexed by himself or by a former occupant, or if this period of time has not passed, and where the improvements have been made in good faith by himself, or those who previously have occupied, then he may recover compensation therefor whether the title is put in issue by a writ of entry, or by petition for partition. Rev. Sts. c. 101, § 20. St. 1850, c. 278. R. L. c. 184, §19; c. 179, § 18. Bacon v. Callender, 6 Mass. 303. Marshall v. Crehore, 13 Met. 462. Plimpton v. Plimpton, 12 Cush. 458, 467. Butrick, petitioner, 185 Mass. 107, 109.

If the plaintiffs had resorted to a writ of entry the defendant would have been entitled to the benefit of these provisions, but if instead they seek relief in equity the form of remedy does not change the right, as the protection which the statute affords is the same. McSorley v. Larissa, 100 Mass. 270, 272. Billings v. Mann, 156 Mass. 203.

Except for the limitation of time the statute is declaratory only of the general maxim that those seeking equity must do equity. Story Eq. Jur. § 799 a, b, note 1. Williams v. Gibbes, 20 How. 535.

The provision, that if it appears possession has been held by a title which the tenant had reason to believe good he then becomes entitled to compensation, is not applicable to the present case as the guardian must be presumed to have known that she was acquiring the estate of her wards, but where it appears that the betterment has been annexed either by the tenant, or those under whom he claims, and that either has actually held the land adversely to the true owner for six years previous to the bringing of the suit in which the ownership is put in issue the value of permanent improvements may be assessed. R. L. c. 179, § 17. Baggot v. Fleming, 10 Cush. 451. Plimpton v. Plimpton, 12 Cush. 458. Wales v. Coffin, 100 Mass. 177.

The conveyance of the guardian indirectly to herself was not an absolute nullity for it passed an estate to which she had the legal seisin, and if she had conveyed to an innocent purchaser for value he would have acquired an indefeasible grant as against the plaintiffs. Somes v. Brewer, 2 Pick. 184,191. Robbins v. Bates, 4 Cush. 104.

If at their election, however, it was defeasible as to her, yet as she occupied under it for more than six years she held by a tenure that although it has now failed was altogether in her own right, and being adverse supports the defendant’s claim for betterments. Bacon v. Callender, 6 Mass. 303. Heath v. Wells, 5 Pick. 140. See Davy v. Durrant, 1 DeG. & J. 535.

The implied or constructive trust which it is sought by the bill to have declared having been found to be established as of the date of the deed to herself, though by reason of the disability of infancy, and after that was removed, because of ignorance of the transaction, the filing of the bill was delayed, is the date to be taken as fixing the time when the plaintiffs’ right accrued. If this is done the defendant will then receive in the right of his mother the full benefit of the betterments, while they will lose a corresponding right to an account of rents and profits, which she would have been obliged to have rendered, but this would be inequitable, for where those entitled to property held in trust are obliged to come into equity to recover their estate, it is generally held that they have a right to further relief by way of an accounting during the time it has been wrongfully withheld. Teasdale v. Sanderson, 33 Beav. 534. Pickering v. Pickering, 63 N. H. 468. Hack v. Norris, 46 Mich. 587. Scruggs v. Memphis Charleston Railroad, 108 U. S. 368. Mayer v. Murray, 8 Ch. D. 424. Strong v. Blanchard, 4 Allen, 538. Long v. Richards, 170 Mass. 120.

Because of reasons previously stated, as the defendant succeeded to a voidable title, and as his claim for compensation arises by way of subrogation, which rests solely upon her expenditure, of which the plaintiffs must pay to him their proportionate part so far as it has permanently enhanced the value of the common property, upon equitable principles they are entitled also to set off their share in the rents and profits during the period of their mother’s occupation after deducting therefrom their contributory part of the sum expended by her for taxes, repairs and insurance. But the amount of their counterclaim is not to be allowed in excess of the sum with which they are charged for improvements. R. L. c. 179, §§ 23, 24. Raymond v. Andrews, 6 Cush. 265, 269. McMahan v. Bowe, 114 Mass. 140, 148. Stark v. Coffin, 105 Mass. 328, 331, 332. Backus v. Chapman, 111 Mass. 386. Brown v. South Boston Savings Bank, 148 Mass. 300. Canal Bank v. Hudson, 111 U. S. 66, 83.

Upon restating the account accordingly, the error which was made in charging the defendant with rent before he became vested with the paper title is rendered immaterial.

Another exception relates to the admission in evidence of the rental value of the premises during the entire period elapsing between the time the house was built and that of filing the bill, but the admission of this testimony for the purpose of ascertaining the amount of rent with which the defendant should be charged after he obtained title was within the master’s discretion, and it was for him to determine whether this evidence was so remote in point of time as to be of no value. Peabody v. New York, New Haven, & Hartford Railroad, 187 Mass. 489, 492, Nor is the remaining exception, that upon the avoidance of the guardian’s sale the widow’s right to dower in the land was restored, so that the defendant should not be held for rent during her life, well taken, for by reason of her death before this suit was instituted this claim not only was extinguished, but never having been assigned, even if revived upon the conveyance to herself being declared invalid, no estate in dower passed to the defendant. Croade v. Ingraham, 13 Pick. 33, 35. Brock v. Rogers, 184 Mass. 545. Walker v. Walker, 101 Mass. 169, 172.

We have thus considered all the exceptions argued, treating the others as waived, and because of the refusal of the master to charge the plaintiffs with their share of the increased value of the property due to the improvements, less their part of the net rents and profits, the exceptions relating to this question, as well as the exception concerning the defendant’s accountability before he became seised must be sustained, and the report recommitted for the purpose of having this part of the account corrected and restated, but in all other respects the defendant’s exceptions are overruled and the report confirmed.

Decree accordingly.