with the girl and went away without comply-1 repair on a way under Rev. Laws, c. 51, ing with the statute, a verdict of guilty was warranted; and the motion for a verdict of acquittal was rightly denied.

The exception of the defendant to the refusal of the court to give the instruction requested is overruled. The request properly could not have been given as it was not posited upon other facts which were required to be proved to establish the defendant's guilt.

[2] The defendant was asked by his counsel the following question:

"If you had known that the little girl was injured would you hae gone across the street and reported to the police station?"

§ 18. Verdicts for plaintiffs, and defendant brings exceptions. Exceptions sustained and judgments ordered entered for defendant.

J. H. Meagher, C. F. Boyle, E. Zaeder, and J. L. Bianchi, all of Worcester, for plaintiffs. C. B. Rugg, Asst. Dist. Atty., of Worcester, for defendant.

CROSBY, J. These are four actions of tort to recover for personal injuries and property damage, alleged to have been sustained by reason of a defect in, or want or repair of, a highway in the defendant town. At the time of the accident, three of the plaintiffs 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.

TAYLOR v. TOWN OF STERLING.
WATSON v. SAME (three cases).
(Supreme Judicial Court of Massachusetts.
Worcester. Oct. 21, 1924.)

1. Highways 193-Municipal corporations
789-Liability for injuries through de-
fects in ways stated.

Liability of cities and towns for defects in ways is not limited under Gen. Laws, c. 84, § 15, to those which are open and visible, but includes those which are beneath surface or concealed, if municipality has had notice or in exercise of reasonable diligence could have known of their existence, and failed to make necessary repairs.

2. Highways 211-Evidence held not sufficient to show town had notice of defect in gutter of ordinary country road.

In action under Gen. Laws, c. 84, § 15, for injuries where wheel of buggy passing another vehicle on ordinary country road broke through or down to depth of 18 inches, in gutter, evidence held insufficient to warrant finding that defendant town failed to exercise care and ditigence imposed upon it in not discovering de

fect.

Exceptions from Superior Court, Worcester County; W. H. Whiting, Judge.

Actions of tort by Etta J. Taylor, Charles F. Watson, Olive J. Watson, and William E. Watson, respectively, against the Town of Sterling, to recover for personal injuries and property damage alleged to have been sustained by reason of defect or want of

These three plaintiffs had driven over this road at an earlier time on the same afternoon. The highway at the place of the accident seems to have been an ordinary country road, somewhat crowned in the center and sloped down on each side to a gutter, to take care of surface water. We assume that the evidence warranted a finding that the driver of the team could be found to have been in the exercise of due care. The important question is whether, if the way was defective, the town by the exercise of reasonable care and diligence might have had reasonable notice of its condition. There was no evidence that the defendant had actual notice of the defect.

The statutory liability imposed upon towns for a defect or want of repair of a way is found in R. L. c. 51, § 18, now G. L. c. 84, § 15. William E. Watson testified that:

"As he was driving down the hill he met a horse and buggy drived by a Mrs. Sandyes, coming in the opposite direction; that both were walking their horses; and both turned out to pass, and as his right forward wheel reached the gutter, it broke through or down the gutter had washed out underneath the surto a depth of 18 inches; that it looked as if

face and shelved over; that as he turned out it looked all right, and until his wheel broke through, so far as he could see, it was all safe and sound."

The plaintiff Etta J. Taylor testified that:

When they met the team going in the opposite direction, "as her father turned out to his right, and when the right front wheel got out into the gutter off the traveled part of the

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(145 N.E.)

way, it went down to a depth of 18 inches; that the hole made by the wheel looked as though it had been washed out underneath; that she had been over the road in question many times, and that it looked the same on that day as it always had; that when the wheel got off the traveled part it broke through, and that, before it broke through the surface, the road and gutter looked to be, so far as she or anybody could see, perfectly safe; that is, before the wheel broke through one couldn't see anything the matter with the road or gutter."

It was agreed that Olive J. Watson, who was unable to attend the trial because of illness, if present, would have testified the same as Mrs. Taylor.

place where the wagon wheel went down looked as if it had been in that condition for some time, there was no evidence as to how long such condition had existed. It appears from the testimony of all the witnesses who were in the wagon at the time of the accident that there was nothing from the appearance of the surface of the gutter where the wheel broke through to show that it had been gullied out underneath or that it was in any way defective, but that so far as could be seen it was safe and in good condition, and there was no evidence to the contrary.

In these circumstances it is impossible to see how any reasonable inspection of the

Charles W. Taylor (the husband of Etta way by the town or its officers, in the exerJ. Taylor) testified:

That he did not see the accident, but went to the place where it occurred the next morning; that there had been no change in the conditions; that he "noticed where they had turned out as they drove along, and where the wheel broke through where the gutter shelved under and the wheel dropped into the ditch, a depth of 18 inches; that the ditch or gutter extended along the road for a distance of about 2 rods, and the earth under the point where the wheel broke through looked as though it had been in that condition for some time; that the hole where the wheel broke through was about 3 feet long."

The plaintiff Charles E. Watson testified: That he examined the place the night of the accident and on the following morning; "that there was an ordinary country ditch at the side of the road with no continuous holes or gully except where the wheel had crushed through where the surface had crusted over; that it rained the night of the accident, and after it, so that the next morning the condition was somewhat changed."

The foregoing recitals contain all the evidence most favorable to the contentions of the plaintiffs that the highway was defective, and that the town had implied notice of its condition.

cise of reasonable diligence, could have discovered the hidden defective condition. If the officers of the town charged with the duty of keeping its ways in repair had inspected this road immediately preceding the accident, there was nothing so far as the evidence `discloses to give them any knowledge of the defect which resulted in the injuries received by the plaintiffs.

The facts in the present case are easily distinguishable from cases where municipalities have been held liable for hidden defects beneath the surface of the highway caused by the breaking of a flagstone in the sidewalk over a coal cellar, Burt v. Boston, supra; by excavating for a tunnel under the way. Connelly v. Boston, 206 Mass. 4, 91 N. E. 998; by the caving in of a street due to the breaking of the cover of a box sewer under the street, Bleistine v. Chelsea, 204 Mass. 105, 90 N. E. 526; by the caving in of a sidewalk by reason of an insufficient foundation, Campbell v. Boston, supra; or by a washout in the surface of the roadbed caused by the escape of water through a defective sewer pipe, Fleming v. Springfield, 154 Mass. 520, 28 N. E. 910, 26 Am. St. Rep. 268. The cases last cited held that the municipalities might be charged with liability because of conditions such as would fairly indicate that the defect in the way might have been discovered by the exercise of reasonable diligence on the part of the defendant or its proper officers.

[1] There was no evidence that the original construction of the way was defective 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 defendindicated 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 entered for the defendant in each case, in accordance with G. L. c. 231, § 122.

So ordered.

FLANNAGAN et al. v. KEEFE et al.

(Supreme Judicial Court of Massachusetts.
Worcester. Oct. 21, 1924.)

1. Mortgages 369 (7)-Bill for reconveyance
held not to sufficiently allege infirmity in
of purchaser at mortgage foreclosure.

The bill in substance alleges that the plaintiffs, while the owners of the real estate in question, in September, 1902, became 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 latter was to satisfy their creditors; that in consideration thereof they executed to him two mortgages on the real estate, for $2,700 and $700 respectively, to secure the payment of notes for those amounts, upon the agree titlement and promise of Keefe to the plaintiffs, that he would pay their creditors, and account to them, and they agreed to reimburse him for all moneys which he had so expended; that it was further agreed between them and Keefe that the instruments so given should not be construed as mortgages in fact, but were executed solely to protect the title to the property pending negotiations for settlement with the creditors of the plaintiffs; that in July, 1904, bankruptcy proceedings were threatened the plaintiffs by certain of their creditors; that upon the fraudulent representations made by Keefe to plaintiffs that it was necessary to take foreclosure proceedings in order to conserve the property, he (Keefe) foreclosed the first mortgage dated September 16, 1902, and on July 26, 1904, executed a deed under the power of sale con

Bill for reconveyance of real estate and accounting held not to sufficiently allege any infirmity in title taken by purchaser at mortgage foreclosure sale.

2. Equity

of bill.

153-No intendment made in favor

No intendment can be made in favor of bill. 3. Vendor and purchaser 226(2)-One purchasing in good faith not affected by subsequent knowledge of infirmity in title.

If one purchases real estate in good faith, in ignorance of infirmity in title, validity of title will not be affected by what he afterwards learns.

4. Evidence 269 (3)-Declarations of grantor after divesting himself of estate not admissible to prove title of grantee is invalid. Declarations of grantor after he has divest-tained in the mortgage to one Deschenes, ed himself of estate are not admissible to prove that title of grantee is invalid, as being fraudulent against creditors of grantor. 5. Vendor and purchaser -238 Purchaser from bona fide purchaser for value takes title. One who purchases real estate from bona fide purchaser for value takes title of such bona fide purchaser, even though he knew of prior infirmity in title.

Appeal from Superior Court, Worcester County; F. T. Hammond, Judge.

Bill in equity by John J. Flannagan and another against John H. Keefe and others, seeking reconveyance of real estate and an accounting. Decree for defendants, and plaintiffs appeal. Affirmed.

Jas. H. P. Dyer, of Leominister, and John H. Meagher, Emil Zaeder, and John L. Bianchi, all of Worcester, for plaintiffs.

E. W. Baker, R. W. Robbins, and Samuel M. Salny, all of Fitchburg, for defendants.

CROSBY, J. This is a bill in equity in which the plaintiffs seek a reconveyance to them of certain real estate, and an accounting with reference thereto. The defendants John H. Keefe and Kathryn A. Fogarty Keefe demurred to the bill, on the ground of want of equity, and upon other grounds; the demurrer was sustained, and a final decree has been entered in the superior court dismissing the bill without costs; the case is before us on appeal from that decree.

which was duly recorded in the registry of deeds; that Deschenes by quitclaim deed dated July 17, 1905, conveyed the premises to the defendant Kathryn A. Fogarty Keefe, wife of the defendant John H. Keefe; that this deed was not recorded in the registry of deeds until July 16, 1921; that on July 2, 1923, Keefe and his wife conveyed the property to the defendants Alek and Aga Petkwic.

The bill further alleges that the defendant John H. Keefe sold certain fixtures out of the buildings, and collected rents from the property for 20 years; that a portion of the premises was occupied by the plaintiffs; that from September, 1902, to July, 1923, Keefe represented to the plaintiffs that the property belonged to them; that they have demanded from him an accounting; that in 1923 he rendered a statement of amounts expended by him on their behalf, which they disputed; that it was agreed that the disputed items should be left to arbitration, and a person was selected so to act, but before any hearing could be held Keefe and his wife conveyed the property as above set forth.

It is further alleged that the defendant Kathryn A. Fogarty Keefe had actual knowledge of the agreement between the plaintiffs and her husband before she sold the property; that it was worth $18,000, and was sold by them for a sum not exceeding $10,000; that the defendants Alek and Aga Petkwic, the I purchasers, had notice that Keefe had no ti

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(145 N.E.)

tle to the premises and had no right to convey them.

[1, 2] The first question to be determined is whether there is any allegation in the bill which, if proved, would defeat the title of 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 faith and pay a valuable consideration therefor. There is no allegation from which it could be inferred that there was any infirmity in the title taken by Deschenes. We can make no intendment in favor of the bill. Bowker v. Torrey, 211 Mass. 282, 97 N. E. 770. In the absence of any allegation that the property was sold to the purchaser at the foreclosure sale with the knowledge on his part of the alleged agreement, the bill is in that respect demurrable.

[3, 4] Although Deschenes conveyed the premises to Mrs. Keefe, there is no allega

tion either in substance or to the effect that she was not a bona fide purchaser for value. There is no allegation that she had any knowledge or notice of the alleged agreement between the plaintiffs and her husband before she took title. The only allegation of knowledge on her part is that before she sold it to the Petkwics she knew of the agreement. If one purchases real estate in good faith for value, in ignorance of an infirmity in the title, the validity of his title will not be affected by what he afterwards learns respecting such infirmity. Wyman v. Hooper, 2 Gray, 141, 146, Sunter v. Sunter, 190 Mass. 449, 454, 77 N. E. 497. It is well settled that the declarations of a grantor after he has divested himself of the estate are not admissible to prove that the title of the grantee is invalid, as being fraudulent against creditors of the grantor. Aldrich v. Earle, 13 Gray, 578; Winchester v. Charter, 97 Mass. 140; Rawson v. Plaisted, 151 Mass. 71, 23 N. E. 722; O'Donnell v. Hall, 154 Mass. 429, 28 N. E. 349; Hughes v. Williams, 218 Mass. 448, 452, 105 N. E. 1056.

It is equally well settled that the title of an innocent purchaser for value of an estate cannot be impeached by knowledge of facts acquired afterwards.

[5] Besides, if Deschenes was a bona fide purchaser for value, then Mrs. Keefe took whatever title he had, even if she always knew of the agreement between the plaintiff's and her husband. Nickerson v. Massachusetts Title Ins. Co., 178 Mass. 308, 313, 59 N. E. 814; Livingstone v. Murphy, 187 Mass. 315, 321, 72 N. E. 1012, 105 Am. St. Rep. 400; Jeselsohn v. Park Trust Co., 241 Mass. 388, 390, 135 N. E. 315. It follows that if Mrs. Keefe had a valid title to the real estate she conveyed a good title to the Petkwics, although they had notice of the agreement before the sale to them.

As the demurrer must be sustained for the reasons stated, we do not consider it necessary to consider the other grounds argued in the plaintiffs' brief. Decree affirmed.

MOREAU v. MOREAU.

(Supreme Judicial Court of Massachusetts. Hampden. Oct. 21, 1924.)

1. Husband and wife 205 (1)—Equity has jurisdiction of suits between husband and wife.

There is jurisdiction in equity over suits between husband and wife to secure her separate property, prevent fraud, relieve from coercion, enforce trusts, and establish conflicting rights concerning property.

2. Husband and wife

229(1)-Allegations in

bill concerning wife's funds held to warrant equitable relief.

Bill in suit by wife against husband showing that savings deposits were separate property of plaintiff; that she retained possession of bank books until fraudulently obtained by defendant; and that they were in his possession or control and can be traced, held to warrant decree for equitable relief, though deposits were made payable to defendant husband. 3. Equity

232-Demurrer to entire bill im

properly sustained where part thereof is good. Demurrer being to entire bill, reviewing court need not consider whether it could have been sustained had it related only to certain allegations therein.

Appeal from Superior Court, Hampden County; William A. Burns, Judge.

Suit in equity by Rose Moreau against Samuel Moreau to recover certain sums of From a final decree sustaining demurrer to amended bill, plaintiff appeals. Reversed and decree entered.

money.

CROSBY, J. This is a suit in equity whereby the plaintiff seeks to recover certain sums of money from her husband. The case is before us on an appeal from a final decree sustaining a demurrer to the amended bill.

The third and fourth paragraphs allege in substance that in the year 1899 the plaintiff opened an account and deposited funds in the Holyoke Savings Bank, and afterwards deposited other funds therein; that the money so deposited was her property; that the account was in the name of Rose Moreau with the further notation, "Pay to Samuel

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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; that the bank book remained in her possession and under her sole control until obtained by the defendant in the manner hereinafter described.