Fondi v. Luongo ( 1930 )

TANNER, J.

This is a bill in equity asking for the cancellation of a deed from the complainants to the respondent Aristide Paoletti and also a deed from the said respondent Paoletti to the respondent Thomas LuongO'. The case is heard upon demurrer to the bill.

We do not think it is necessary to cancel the two deeds just referred to. Whatever title the respondent Paoletti obtained by the deed from the complainants to him has merged in respondent Thomas Luongo.

Neither do we think it is necessary to cancel the deed from Paoletti to Luongo since upon the testimony of the said Luongo quoted in the bill, which must be taken as true upon demurrer, the complainants authorized said Luongo to take the property and do as he pleased with it; evidently meaning thereby that he should handle it for the best advantage of the complainants. This the said Luongo appears to have done since he paid charges on the property which the complainants were unable to pay, and we think, under the allegations of the bill, that said Luongo holds said property under a trust to reconvey it to the complainants upon a proper accounting. The deed to Luongo may be held to amount to a mortgage or to an equitable lien on account of expenditures by the said Luongo.

While, therefore, we sustain the demurrer to the prayers of the bill asking that the deed from the complainant to Paoletti and from Paoletti to the respondent Luongo should be can-celled, we think the bill should be re tained to compel the accounting asked for in the bill.