with the girl and went away without comply- j repair on a way under Rev. Laws, C. 51, ing with the statute, a verdict of guilty was $ 18. Verdicts for plaintiffs, and defendant warranted; and the motion for a verdict of brings exceptions. Exceptions sustained and acquittal was rightly denied.

judgments ordered entered for defendant. The exception of the defendant to the re

J. H. Meagher, C. F. Boyle, E. Zaeder, and fusal of the court to give the instruction J. L. Bianchi, all of Worcester, for plaintiffs. requested is overruled. The request prop

C. B. Rugg, Asst. Dist. Atty., of Worceserly could not have been given as it was not

ter, for defendant. posited upon other facts which were required to be proved to establish the defendant's guilt.

CROSBY, J. These are four actions of [2] The defendant was asked by his coun- tort to recover for personal injuries and propsel the following question:

erty damage, alleged to have been sustained

by reason of a defect in, or want or repair "If you had known that the little girl was of, a highway in the defendant town. At injured would you hae gone across the street the time of the accident, three of the plainand reported to the police station ? "

tiffs were riding in a one-seated democrat The question was rightly excluded. It wagon, William E. Watson and Olive J. Watwas immaterial whether he would have re son on the seat, and their daughter (the plainported to the police station if he had known tiff Taylor) between them on a stool placed the girl was injured. If he knew that she in front. The accident occurred on the was injured he was under no legal obliga- Princeton road, so called, in Sterling, at tion to report to the police station. If he about 4 o'clock in the afternoon of October had been permitted to answer, and his an- 19, 1917. As the plaintiff William E. Watson, swer had been in the affirmative, it would who was driving, turned out to pass another not have been relevant or material to any is- horse and wagon, the right front wheel of sue involved at the trial

his wagon broke through the surface of the Exceptions overruled.

road in the gutter, and the occupants were thrown to the ground.

These three plaintiffs had driven over this

road at an earlier time on the same afterTAYLOR v. TOWN OF STERLING.

The highway at the place of the acWATSON V. SAME (three cases).

cident seems to have been an ordinary coun

try road, somewhat crowned in the center (Supreme Judicial Court of Massachusetts. and sloped down on each side to a gutter, Worcester. Oct. 21, 1924.)

to take care of surface water. We assume 1. Highways em 193—Municipal corporations

that the evidence warranted a finding that Em789—Liability for injuries through de- the driver of the team could be found to have fects in ways stated.

been in the exercise of due care, The imLiability of cities and towns for defects in portant question is whether, if the way was ways is not limited under Gen. Laws, c. 84, 8 defective, the town by the exercise of rea15, to those which are open and visible, but sonable care and diligence might have had includes those which are beneath surface or reasonable notice of its condition. There concealed, if municipality has had notice or in was no evidence that the defendant had acexercise of reasonable diligence could have tual notice of the defect. known of their existence, and failed to make necessary repairs.

The statutory liability imposed upon towns

for a defect or want of repair of a way is 2. Highways 211-Evidence held not suffi- found in R. L. c. 51, § 18, now G. L. C. 84,

cient to show town had notice of defect in $ 15. William E. Watson testified that:
gutter of ordinary country road.
In action under Gen. Laws, c. 84, § 15, for

"As he was driving down the hill he met a injuries where wheel of buggy passing another horse and buggy drived by a Mrs. Sandyes, vehicle on ordinary country road broke through coming in the opposite direction; that both or down to depth of 18 inches, in gutter, evi- were walking their horses; and both turned dence held insufficient to warrant finding that out to pass, and as his right forward wheel defendant town failed to exercise care and diti- reached the gutter, it broke through or down gence imposed upon it in not discovering de- to a depth of 18 inches; that it looked as if fect.

the gutter had washed out underneath the sur

face and shelved over; that as he turned out Exceptions from Superior Court, Worcester it looked all right, and until his wheel broke County; W. H. Whiting, Judge.

through, so far as he could see, it was all safe

and sound." Actions of tort by Etta J. Taylor, Charles F. Watson, Olive J. Watson, and William The plaintiff Etta J. Taylor testified that: E. Watson, respectively, against the Town

When they met the team going in the oppoof Sterling, to recover for personal injuries site direction, “as her father turned out to his and property damage alleged to have been right, and when the right front wheel got out sustained by reason of defect or want of into the gutter off the traveled part of the

em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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(146 N.E.) way, it went down to a depth of 18 inches; that place where the wagon wheel went down the hole made by the wheel looked as though looked as if it had been in that condition it had been washed out underneath; that she for some time, there was no evidence as bad been over the road in question many times, to how long such condition had existed. It and that it looked the same on that day as it always had; that when the wheel got off the appears from the testimony of all the wittraveled part it broke through, and that, be- nesses who were in the wagon at the time fore it broke through the surface, the road of the accident that there was nothing from and gutter looked to be, so far as she or any- the appearance of the surface of the gutter body could see, perfectly safe; that is, before where the wheel broke through to show that the wheel broke through one couldn't see any- it had been gullied out underneath or that thing the matter with the road or gutter."

it was in any way defective, but that so far

as could be seen it was safe and in good It was agreed that Olive J. Watson, who condition, and there was no evidence to the was unable to attend the trial because of contrary. illness, if present, would have testified the In these circumstances it is impossible to same as Mrs. Taylor.

see how any reasonable inspection of the Charles W. Taylor (the husband of Ettaway by the town or its officers, in the exerJ. Taylor) testified:

cise of reasonable diligence, could have dis

covered the hidden defective condition. ID That he did not see the accident, but went the officers of the town charged with the to the place where it occurred the next morn- duty of keeping its ways in repair had ining; that there had been no change in the conditions; that he "noticed where they had turn-spected this road immediately preceding the ed out as they drove along, and where the accident, there was nothing so far as the eviwheel broke through where the gutter shelved dence 'discloses to give them any knowledge under and the wheel dropped into the ditch, of the defect which resulted in the injuries a depth of 18 inches; that the ditch or gutter received by the plaintiffs. extended along the road for a distance of about The facts in the present case are easily 2 rods, and the earth under the point where distinguishable from cases where municipalthe wheel broke through looked as though it ities have been held liable for hidden defects had been in that condition for some time;

that the hole where the wheel broke beneath the surface of the highway caused through was about 3 feet long."

by the breaking of a flagstone in the sidewalk over a coal cellar, Burt v. Boston, su

pra; by excavating for a tunnel under the The plaintiff Charles E. Watson testified:

way. Connelly v. Boston, 206 Mass. 4, 91 That he examined the place the night of the N. E. 998; by the caving in of a street due accident and on the following morning; "that to the breaking of the cover of a box sewer there was an ordinary country ditch at the under the street, Bleistine , v. Chelsea, 204 side of the road with no continuous holes or Mass. 105, 90 N. E. 526; by the caving in gully except where the wheel bad crushed of a sidewalk by reason of an insufficient through where the surface had crusted over; foundation, Campbell v. Boston, supra; or that it rained the night of the accident, and by a washout in the surface of the roadbed after it, so that the next morning the condition caused by the escape of water through a was somewhat changed.”

defective sewer pipe, Fleming v. Springfield,

154 Mass. 520, 28 N. E. 910, 26 Am. St. Rep. The foregoing recitals contain all the evi. 268. The cases last cited held that the mudence most favorable to the contentions of nicipalities might be charged with liability the plaintiffs that the highway was defective, because of conditions such as would fairly and that the town had implied notice of its indicate that the defect in the way might condition.

have been discovered by the exercise of rea[1] There was no evidence that the origi- sonable diligence on the part of the defendnal construction of the way was defective ant or its proper officers. or that it had been improperly repaired ; In the case at bar, the evidence is insuffinor evidence that the surface of the road cient to warrant a finding that the defend. indicated that it was not reasonably safe ant failed to exercise that degree of care and convenient for travelers with their hors- and diligence which the statute imposed upon es and carriages. The liability of cities and it. The case is governed by Rochefort v. towns for defects in ways is not limited un- ! Attleborough, 154 Mass. 140, 27 N. E. 1013, der the statute to those which are open and 26 Am. St. Rep. 221, Stoddard v. Winchesvisible. They are also liable for those which ter, 154 Mass. 149, 27 N. E. 1014, 26 Am. are beneath the surface of the way or con- St. Rep. 223, Parker v. Boston, 175 Mass. cealed, if the municipality has had notice of 501, 56 N. E. 569, Miller v. North Adams, such defect or in the exercise of reasonable 182 Mass. 569, 66 N. E. 197, Smith v. Hyde diligence could have known of its existence, Park, 219 Mass. 158, 106 N. E. 564, and Hamand failed to make necessary repairs. Burt ilton v. Cambridge, 219 Mass. 418, 106 N. E. v. Boston, 122 Mass. 223, 226; Campbell v. 1018. Boston, 189 Mass. 7, 75 N. E. 96.

The exceptions to the refusal of the court [2] Although one witness testified that the 'to give the defendant's first and ninth re

quests are sustained, and judgment is to be The bill in substance alleges that the entered for the defendant in each case, in plaintiffs, while the owners of the real esaccordance with G. L. C. 231, § 122.

tate in question, in September, 1902, became So ordered.

financially embarrassed and unable to meet their obligations; that by reason of this condition they entered into an agreement with

the defendant John H. Keefe, whereby the FLANNAGAN et al. v. KEEFE et al.

latter was to satisfy their creditors; that

in consideration thereof they executed to him .(Supreme Judicial Court of Massachusetts. two mortgages on the real estate, for $2,700 Worcester. Oct. 21, 1924.)

and $700 respectively, to secure the payment 1. Mortgages Em369(7)—Bill for reconveyance of notes for those amounts, upon the agreeheld not to sufficiently allege infirmity in title

ment and promise of Keefe to the plaintiffs, of purchaser at mortgage foreclosure.

that he would pay their creditors, and acBill for reconveyance of real estate and ac count to them, and they agreed to reimburse counting held not to sufficiently allege any in him for all moneys which he had so expendfirmity in title taken by purchaser at mortgage ed; that it was further agreed between them foreclosure sale.

and Keefe that the instruments so given 2. Equity w 153—No intendment made in favor should not be construed as mortgages in fact, of bill.

but were executed solely to protect the title No intendment can be made in favor of bill. to the property pending negotiations for set3. Vendor and purchaser em 226(2)-One pur that in July, 1904, bankruptcy proceedings

tlement with the creditors of the plaintiffs; chasing in good faith not affected by subsequent knowledge of infirmity in title.

were threatened the plaintiffs by certain of If one purchases real estate in good faith,

their creditors; that upon the fraudulent in ignorance of infirmity in title, validity of title representations made by Keefe to plaintiffs will not be affected by what he afterwards that it was necessary to take foreclosure prolearns.

ceedings in order to conserve the property, 4. Evidence Cm 269(3)-Declarations of gran

he (Keefe) foreclosed the first mortgage dattor after divesting himself of estate not ad. ed September 16, 1902, and on July 26, 1904, missible to prove title of grantee is invalid.

executed a deed under the power of sale conDeclarations of grantor after he has divest- tained in the mortgage to one Deschenes, ed himself of estate are not admissible to prove which was duly recorded in the registry of that title of grantee is invalid, as being fraudu- deeds; that Deschenes by quitclaim deed lent against creditors of grantor.

dated July 17, 1905, conveyed the premises 5. Vendor and purchaser em 238 – Purchaser to the defendant Kathryn A. Fogarty Keefe, from bona fide purchaser for value takes title. wife of the defendant John H. Keefe; that

One who purchases real estate from bona this deed was not recorded in the registry of fide purchaser for value takes title of such bona deeds until July 16, 1921; that on July 2, fide purchaser, even though he knew of prior 1923, Keefe and his wife conveyed the propinfirmity in title.

erty to the defendants Alek and Aga Petkwic. Appeal from Superior Court, Worcester John H. Keefe sold certain fixtures out of the

The bill further alleges that the defendant County; F. T. Hammond, Judge.

buildings, and collected rents from the propBill in equity by John J. Flannagan and erty for 20 years; that a portion of the premanother against John H. Keefe and others, ises was occupied by the plaintiffs; that seeking reconveyance of real estate and an from September, 1902, to July, 1923, Keefe accounting. Decree for defendants, and represented to the plaintiffs that the prop plaintiffs appeal. Affirmed.

erty belonged to them; that they have de Jas. H. P. Dyer, of Leominister, and John manded from him an accounting; that in H. Meagher, Emil Zaeder, and John L. Bian- 1923 he rendered a statement of amounts exchi, all of Worcester, for plaintiff's.

pended by him on their behalf, which they E. W. Baker, R. W. Robbins, and Samuel disputed; that it was agreed that the disM. Salny, all of Fitchburg, for defendants. puted items should be left to arbitration, and

a person was selected so to act, but before CROSBY, J. This is a bill in equity in any hearing could be held Keefe and his which the plaintiffs seek a reconveyance to wife conveyed the property as above set them of certain real estate, and an account forth. ing with reference thereto. The defendants It is further alleged that the defendant John H. Keefe and Sathryn A. Fogarty Kathryn A. Fogarty Keefe had actual knowlKeefe demurred to the bill, on the ground of edge of the agreement between the plaintiffs want of equity, and upon other grounds; the and her husband before she sold the property; demurrer was sustained, and a final decree that it was worth $18,000, and was sold by has been entered in the superior court dis- them for a sum not exceeding $10,000; that missing the bill without costs; the case is be- | the defendants Alek and Aga Petkwic, the fore us on appeal from that decree. | purchasers, had notice that Keefe had no ti.

bor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(145 N.E.) tle to the premises and had no right to con As the demurrer must be sustained for the vey them.

reasons stated, we do not consider it neces[1, 2] The first question to be determined is sary to consider the other grounds argued in whether there is any allegation in the bill the plaintiffs' brief. which, if proved, would defeat the title of Decree affirmed. Deschenes, the purchaser of the property at the foreclosure sale. There is no allegation that he had knowledge of the alleged agreement between Keefe and the plaintiffs, or that he did not bid off the property in good

MOREAU V. MOREAU. faith and pay a valuable consideration therefor. There is no allegation from which it

(Supreme Judicial Court of Massachusetts. could be inferred that there was any infirm

Hampden. Oct. 21, 1924.) ity in the title taken by Deschenes. We can make no intendment in favor of the bill./!. Husband and wife w205(1)-Equity has

jurisdiction of suits between husband and Bowker v. Torrey, 211 Mass. 282, 97 N. E.

wife. 770. In the absence of any allegation that

There is jurisdiction in equity over suits the property was sold to the purchaser at between husband and wife to secure her septhe foreclosure sale with the knowledge on arate property, prevent fraud, relieve from cohis part of the alleged agreement, the bill is ercion, enforce trusts, and establish conflicting in that respect demurrable.

rights concerning property. [3, 4] Although Deschenes conveyed the premises to Mrs. Keefe, there is no allega- 2. Husband and wife em229(1)-Allegations in

bill concerning wife's funds held to warrant tion either in substance or to the effect that

equitable relief. she was not a bona fide purchaser for value. There is no allegation that she had any that savings deposits were separate property

Bill in suit by wife against husband showing knowledge or notice of the alleged agreement between the plaintiffs and her husband be bank books until fraudulently obtained by de

of plaintiff; that she retained possession of fore she took title.

The only allegation of fendant; and that they were in his possession knowledge on her part is that before she or control and can be traced, held to warrant sold it to the Petkwics she knew of the agree- decree for equitable relief, though deposits were ment. If one purchases real estate in good made payable to defendant husband. faith for value, in ignorance of an infirmity in the title, the validity of his title will not be 3. Equity Cm 232–Demurrer to entire bill im.

properly sustained where part thereof is good. affected by what he afterwards learns re

Demurrer being to entire bill, reviewing specting such infirmity. Wyman v. Hooper, court need not consider whether it could have 2 Gray, 141, 146, Sunter v. Sunter, 190 Mass. been sustained had it related only to certain al. 449, 454, 77 N. E. 497. It is well settled that legations therein. the declarations of a grantor after he has divested himself of the estate are not admis Appeal from Superior Court, Hampden sible to prove that the title of the grantee is County; William A. Burns, Judge. invalid, as being fraudulent against creditors of the grantor. Aldrich v. Earle, 13 Gray, Samuel Moreau to recover certain sums of

Suit in equity by Rose Moreau against 578; Winchester v. Charter, 97 Mass. 140; Rawson v. Plaisted, 151 Mass. 71, 23 N. E money. From a final decree sustaining de

murrer to amended bill, plaintiff appeals. 722; O'Donnell v. Hall, 154 Mass. 429, 28 N.

Reversed and decree entered. E. 349; Hughes v. Williams, 218 Mass. 448, 452, 105 N. E. 1056.

Richard J. Talbot, of Springfield, for apIt is equally well settled that the title of pellant. an innocent purchaser for value of an estate

Ball & Lavigne, of Springfield, for appel. cannot be impeached by knowledge of facts | lee. acquired afterwards. [5] Besides, if Deschenes was a bona fide

CROSBY, J. This is a suit in equity purchaser for value, then Mrs. Keefe took whereby the plaintiff seeks to recover cer. whatever title he had, even if she always tain sums of money from her husband. The knew of the agreement between the plaintiff's case is before us on an appeal from a final and her husband. Nickerson v. Massachu- decree sustaining a demurrer to the amended setts Title Ins. Co., 178 Mass. 308, 313, 59 bill. N. E. 814; Livingstone v. Murphy, 187 Mass. The third and fourth paragraphs allege in 315, 321, 72 N. E. 1012, 105 Am. St. Rep. 400; substance that in the year 1899 the plaintiff Jeselsohn v. Park Trust Co., 241 Mass. 388, opened an account and deposited funds in 390, 135 N. E. 315. It follows that if Mrs. the Holyoke Savings Bank, and afterwards Keefe had a valid title to the real estate she deposited other funds therein; that the monconveyed a good title to the Petkwics, al- ey so deposited was her property; that the though they had notice of the agreement be account was in the name of Rose Moreau fore the sale to them.

with the further notation, “Pay to Samuel For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Moreau”; that the notation or direction was the possession or under the control of replaced on the account for the purpose of en- spondent." abling the defendant to withdraw the same in the event that he survived the plaintiff;

[1, 2] It is settled in this commonwealth that the bank book remained in her posses

that: sion and under her sole control until obtain “There is jurisdiction in equity over suits ed by the defendant in the manner herein between husband and wife to secure her sepafter described.

arate property, to prevent fraud, to relieve The bill further alleges in substance that from coercion, to enforce trusts, and estabon or about November 9, 1909, the plaintiff ty." Gahm v. Gahm, 243 Mass. 374, 376, 137 N.

lish other conflicting rights concerning properopened a savings account with her own funds E. 876, and cases cited. in the Industrial Trust Company, located at Warren, R. I., and that afterwards she made The allegations of fact in the bill, which other deposits therein; that all such deposits are to be taken as true for the purposes of were earned by her, having been saved from the demurrer, show that two of the deposits household allowances or accumulated by the were the separate property of the plaintiff; taking of roomers or boarders; that this ac- that she retained possession of the bank count was in the name of "Rose Moreau or books representing these deposits until they Sam Moreau and payable to either or the were fraudulently obtained by the defendsurvivor of either"; that the deposit was so ant; and that they are in his possession or made for the convenience of the plaintiff's control and can be traced. These allegahusband in the event he survived her, and tions, if proved, are ample to warrant a de

cree for equitable relief. It cannot be inferthat for her protection the bank book was retained by her until taken by the defend- red, in view of the recitals of the bill, that

the plaintiff ever intended that the two deant. The bill further alleges in substance that posits made by her should pass into her hus

band's control or become his property. It on or about January 29, 1917, the defendant follows that he could not lawfully withdraw opened an account in the Springfield Institu- them and convert them to his own tion for Savings in the name of “Samuel Woodard v. Woodard, 216 Mass. 1, 102 N. E. Moreau, subject to withdrawal in whole or 921 ; Carpenter v. Carpenter, 227 Mass. 288, in part by either or the survivor of either 116 N. E. 494 ; Daniels v. Daniels, 240 Mass. Samuel or Rose Moreau"; that the funds 380, 134 N. E. 235. therein were all deposited by the defendant

[3] The demurrer being to the entire bill, but that he informed the plaintiff he would we need not consider whether it could have not withdraw the same without her consent, been sustained had it related only to the aland gave her the bank book, which was relegations respecting the deposit made by the tained by her until taken by him as herein- defendant in his own name in the Spring. after described.

field Institution for Savings. It is alleged that the bank books repre The contention of the defendant that the senting these deposits were at all times in case is governed by the decision in Marble the possession of the plaintiff and were se Treasurer and Receiver General, 245 creted by her in her house until, during her Mass. 504, 139 N. E. 442, is without merit. absence, the defendant, "by fraud, and with That case presented the question whether the fraudulent intention of withdrawing said any part of certain savings bank deposits funds, and depriving her of her rights there made by husband and wife, and subject to in, secured possession of said bank books, withdrawal by either, was liable, after his during February and March of 1921, and death, to a succession tax, under G. L. C. 65, withdrew said funds, bringing all of said 1, as amended by St. 1916, c. 268, § 1. The funds to Springfield; that, having obtained questions there decided have no bearing uppossession of said books and said funds, and on the rights of the plaintiff in the case at as part of his plan in securing said funds, bar. he abandoned her on the 12th of April, 1921, The decree should be reversed, and a de and has not since contributed to her support cree entered overruling the demurrer.

and that such funds are now in Ordered accordingly.



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