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Attorney(S)

R.T. Capeless, ( L.S. Cain, A.W. Chesney R.A. Lewis with him,) for the plaintiffs. M.B. Warner, ( F.J. Quirico with him,) for the defendant.

Judges

RONAN, J.

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Smart Summary

Case Summary: Duncan McOuatt others v. Ellen A. McOuatt

Factual and Procedural Background

This is a bill in equity brought by three children of one McOuatt to set aside a transfer of real estate from McOuatt to the defendant, his wife and the plaintiffs' stepmother. The bill alleged that the transfer was procured because McOuatt was of unsound mind and by the undue influence of the defendant. The bill was filed in the Superior Court on January 11, 1944 (with a writ dated December 17, 1943). The suit was heard by Hammond, J., on a master's report. The deed at issue was dated and signed by the grantor on November 12, 1943; it bore a certificate of acknowledgment by a notary public of the same date and was recorded before the grantor's death later that day.

The plaintiffs appealed from an interlocutory decree which confirmed the master's report after a paragraph had been struck out, denied the plaintiffs' motion for a final decree in their favor, and allowed the defendant's motion to confirm the master's report as modified. The plaintiffs also appealed from a final decree dismissing the bill.

Legal Issues Presented

Whether, on the evidence and findings, the burden of proof was on the defendant (the grantee) to prove that she did not exert undue influence in procuring the deed.
Whether the facts found by the master supported a conclusion that the deed was procured by undue influence of the defendant (i.e., whether the deed should be set aside on that ground).
Whether the deed was "duly acknowledged" within the meaning of G.L. (Ter. Ed.) c. 209, § 3 — a statutory requirement for the validity/effect of conveyances of real estate between husband and wife — given the master's finding that the grantor did not say anything indicating an acknowledgment of the deed as his free act and deed.
Whether relief predicated on the deed not having been duly acknowledged could be granted although that ground was not alleged in the bill, and if not, whether the plaintiffs could amend the bill to pursue that relief.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Saltman v. Smith, 313 Mass. 135	Cited for the duty of an appellate tribunal to draw its own inferences from a master's subsidiary findings.	Used to support the court's statement that it must draw its own inferences from the master's findings on undue influence.
Murray v. Bateman, 315 Mass. 113	Same principle as Saltman: appellate duty to draw inferences from master's findings.	Reinforced the court's approach in reviewing the master's findings and drawing independent inferences.
Cereghino v. Giannone, 247 Mass. 319	Cited in the context of burden of proof regarding undue influence.	Quoted as authority that the master's ruling placing the burden on the defendant to disprove undue influence was incorrect.
Briggs v. Weston, 294 Mass. 452	Cited in support of the proposition concerning burden of proof on undue influence issues.	Used to demonstrate that the master's allocation of burden to the defendant was erroneous.
Mirick v. Phelps, 297 Mass. 250	Cited concerning burden of proof on undue influence.	Also relied on to show that the master's ruling on burden was wrong.
Maynard v. Tyler, 168 Mass. 107	Cited for the proposition that a wife may request or persuade her husband to make provision for her and that such conduct does not by itself establish undue influence.	Applied to conclude that the master's findings (showing the wife's request) did not establish undue influence.
Aldrich v. Aldrich, 215 Mass. 164	Cited in the same context as Maynard regarding permissible spousal requests and persuasion.	Supported the court's view that the facts fell short of proving undue influence.
Fitch v. Fitch, 249 Mass. 550	Cited for the same general principle concerning requests by a spouse and undue influence.	Used with the other authorities to justify rejecting undue influence on the present facts.
Hogan v. Whittemore, 278 Mass. 573	Another Massachusetts case cited on the question of undue influence in spousal contexts.	Part of the group of authorities indicating that a spouse's request does not automatically amount to undue influence.
Dole v. Thurlow, 12 Met. 157	Cited for the rule that title may be transferred by a deed not acknowledged (as to conveyance between grantor and those with actual notice).	Used in explaining that some deeds may be effective without acknowledgment as between certain parties.
Palmer v. Paine, 9 Gray 56	Cited for the same principle that a deed may be effective without acknowledgment as to those with notice.	Supported the proposition that acknowledgment is not always essential to bind all parties.
Hayden v. Peirce, 165 Mass. 359	Cited in relation to recording and notice principles and the nature of acknowledgment certificates.	Referenced when explaining recording/notice and evidentiary character of acknowledgment certificates.
Cooper v. Monroe, 237 Mass. 192	Cited among authorities on recording and the effect of unacknowledged or defectively acknowledged deeds.	Included in the court's survey of cases on deed effectiveness and recording.
Pidge v. Tyler, 4 Mass. 541	Cited for the requirement that a certificate reciting the grantor's acknowledgment must be attached to entitle a deed to recording.	Supported the statement that a certificate of acknowledgment is required for recording to give notice to the world.
Shaw v. Poor, 6 Pick. 86	Cited in the same connection regarding certificates of acknowledgment.	Used to show longstanding Massachusetts authorities on acknowledgment certificates.
Old Colony Trust Co. v. Medfield Medway Street Railway, 215 Mass. 156	Cited related to the requirement and function of acknowledgment certificates for recording.	Part of the authorities showing the evidentiary nature of acknowledgment certificates.
Toupin v. Peabody, 162 Mass. 473	Cited on the function of recording as giving notice to the world.	Used to support the court's description of recording and notice principles.
Lamson Co. (Inc.) v. Abrams, 305 Mass. 238	Cited with other cases bearing on recording and acknowledgment certificates.	Included in the survey of authorities about acknowledgment and recording.
Learned v. Riley, 14 Allen 109	Cited for the proposition that recitals in an acknowledgment certificate are evidentiary and may be contradicted.	Used to show that certificates are not conclusive and may be rebutted.
McDonald v. Willis, 143 Mass. 452	Cited regarding the non-conclusive (evidentiary) character of acknowledgment recitals.	Helped support the court's point that certificates can be contradicted by evidence.
O'Neil v. Webster, 150 Mass. 572	Cited for the view that taking an acknowledgment is a ministerial, not a judicial act, and for the function of certificates.	Employed to show the nature and function of acknowledgments and certificates for recording.
Ayer v. Ahlborn, 174 Mass. 292	Cited in relation to judicial certificates obtained posthumously when a grantor dies without acknowledgment (§ 34).	Referenced when discussing statutory mechanisms and precedents for certificates following death without acknowledgment.
New England Bond Mortgage Co. v. Brock, 270 Mass. 107	Cited on the evidentiary role of acknowledgment certificates and statutory recording rules.	Used to illustrate that certificates serve as formal proof of execution for recording purposes.
Joiner v. Firemen's Ins. Co., 6 F. Supp. 103	One of several out-of-state authorities cited for the proposition that statutes may make acknowledgment essential in transfers between spouses.	Included as an example of jurisdictions where acknowledgment is made essential by statute for certain transfers.
Hutchinson v. Stone, 79 Fla. 157	Out-of-state authority on statutory requirements making acknowledgment essential for certain property transfers.	Part of the court's demonstration that legislatures can make acknowledgment an essential part of particular conveyances.
McKinney v. Merritt, 35 Idaho 600	Out-of-state authority on statutory acknowledgment requirements.	Used as part of the comparative authority showing statutory variations.
Wise v. Raynor, 200 N.C. 567	Out-of-state authority regarding statutory acknowledgment essentials.	Included among authorities showing legislative control over acknowledgment requirements.
Potter v. Steer, 95 N.J. Eq. 102	Another out-of-state case addressing statutory acknowledgment rules.	Part of the supporting authorities for the proposition that statutes can render acknowledgment essential.
Koperski v. Wira, 97 N.J. Eq. 88	Out-of-state authority cited on statutory requirements for acknowledgments.	Used in the court's comparative discussion of statutory schemes.
Chamberlain v. Spargur, 86 N.Y. 603	Out-of-state precedent on statutory acknowledgment issues.	Included as further authority that statutes may require acknowledgments to make transfers effective.
Nellis v. Munson, 108 N.Y. 453	Out-of-state citation on acknowledgment essentials under statute.	Used to demonstrate that other jurisdictions treat acknowledgment as essential for certain transfers.
Jefferson County Bank v. Hale, 152 Tenn. 648	Out-of-state case on statutory acknowledgment requirements.	Part of the court's list of authorities showing statutory control over acknowledgment necessity.
Hanley v. Richards, 116 W. Va. 127	Out-of-state authority on acknowledgment as an essential statutory requirement in particular transfers.	Included in the comparative statutory examples cited by the court.
Thatcher v. Omans, 3 Pick. 521	Cited to show that without a statute, one spouse could not make a conveyance of real estate directly to the other.	Used to explain the historical basis for statutes permitting interspousal conveyances subject to statutory requirements.
Erickson v. White, 288 Mass. 451	Cited for the proposition that G.L. c. 209, § 3 is complete in itself and that the validity of deeds between husband and wife depends on that section.	Relied on to support the conclusion that the deed's validity depends entirely on compliance with G.L. c. 209, § 3.
Kelly v. Calhoun, 95 U.S. 710	Cited for the definition that an acknowledgment is the grantor's formal statement to the officer that the execution was his free act and deed and that no particular words are necessary.	Used to state the legal standard for what constitutes an acknowledgment.
Qualls v. Qualls, 196 Ala. 524	Cited for the same principle defining an acknowledgment and the sufficiency of words or acts.	Supported the court's description of what constitutes an acknowledgment.
Jemison v. Howell, 230 Ala. 423	Cited as an authority on the sufficiency of acknowledgments.	Included in the authorities describing the necessary content of an acknowledgment.
Jackson v. Hudspeth, 208 Ark. 55	Cited in the same group of authorities on acknowledgments.	Part of the supporting authorities for the court's statement on acknowledgments.
Commercial Credit Corp. v. Carlson, 114 Conn. 514	Cited for recognition that certain words or acts suffice for an acknowledgment.	Used with other authorities to define an acknowledgment's content.
Riddle v. Keller, 16 Dick. (N.J.) 513	Authority on acknowledgment sufficiency.	Included in the court's list of cases describing acknowledgments.
Linderman v. Hastings Card Paper Co., 38 App. Div. (N.Y.) 488	Authority on what constitutes an acknowledgment.	Part of the authorities cited regarding acknowledgments.
Acklin v. First National Bank, 64 N.D. 577	Authority cited on acknowledgment sufficiency.	Included in the court's survey of cases defining acknowledgment.
Herron v. Harbour, 75 Okla. 127	Another authority on the nature and sufficiency of acknowledgments.	Used among other cases to state the legal meaning of an acknowledgment.
Donohue v. White, 247 Mass. 479	Cited concerning the principle that relief beyond the allegations of the bill cannot be granted without amendment even if the issue was heard before the master.	Applied to hold that relief based on lack of acknowledgment went beyond the bill's allegations and required an amendment.
New England Co. v. Pritchard, 300 Mass. 362	Cited for the same procedural proposition regarding amendment and scope of pleadings.	Used to support the requirement that the bill be amended before granting relief on the acknowledgment ground.
Drury v. Hartigan, 312 Mass. 175	Cited with the other Massachusetts cases on the need for amendment when relief goes beyond the bill's allegations.	Also relied on to show that relief not pleaded cannot be granted without amendment of the bill.

Court's Reasoning and Analysis

The court reviewed the master's subsidiary findings and stated its duty to draw independent inferences from those findings. It first addressed the master's statement placing the burden on the defendant to prove she did not exert undue influence. The court held that this allocation of burden was erroneous and that striking that portion of the master's report was proper, citing prior Massachusetts authorities.

Turning to the merits of undue influence, the court summarized the master's findings: prior conversations in which the defendant asked that property be placed in both names; the grantor's expressed desire to consult a lawyer; circumstances in the hospital on November 12, 1943, when the defendant spoke to a nurse who called an attorney; the attorney's consultation and the physician's statement that the grantor knew what he was about to do; the defendant bringing a deed prepared by the attorney to the hospital; the notary public (a hospital clerk) asking the grantor if he knew what he was about to sign and the grantor replying that he did and that he was turning over his property to his wife; the grantor executing the deed by making an X with assistance; the defendant recording the deed at the grantor's request; and the grantor's death about eight hours later.

The court reasoned that a wife may properly discuss and even request a provision for her benefit; the findings showed only such a request and not undue influence. Accordingly, the court concluded there was no proof of undue influence sufficient to set aside the transfer on that ground.

The court then addressed acknowledgment. It reviewed statutory and case law principles: while some deeds may be effective without acknowledgment as to certain parties, where the Legislature has made acknowledgment essential for particular transfers (including husband-to-wife conveyances under G.L. c. 209, § 3), compliance is necessary for validity. The court explained that an acknowledgment requires a formal statement by the grantor to the official that the execution was his free act and deed; no particular words are required, but some equivalent admission must be made.

Critically, the master expressly found that after signing the deed the grantor "did not employ any language to indicate that he acknowledged the instrument as his free act and deed." The court found no subsidiary facts from which an effective acknowledgment could be inferred. Because G.L. c. 209, § 3 makes acknowledgment essential for interspousal conveyances to take effect, the court concluded that the deed was not "duly acknowledged" and therefore had no effect.

Finally, the court considered procedure: the relief sought on the ground of lack of acknowledgment went beyond the allegations of the original bill. Even though the matter had been heard before the master, the court stated that relief on that ground could not be granted without an amendment to the bill. The court therefore affirmed the interlocutory decree as the pleadings then stood, but provided conditional relief: if the plaintiffs obtain a suitable amendment within thirty days, the court directed that the final decree be reversed and a new decree entered setting the deed aside with costs; absent such amendment, the final decree dismissing the bill would be affirmed with costs.

Holding and Implications

Holding: 1. The portion of the master's report placing the burden on the defendant to prove that she did not exert undue influence was erroneous and correctly struck.

2. On the findings, the court concluded there was no sufficient proof of undue influence to set aside the transfer on that ground.

3. The deed from husband to wife was not "duly acknowledged" within the meaning of G.L. (Ter. Ed.) c. 209, § 3 because the master found that the grantor did not say anything indicating he acknowledged the instrument as his free act and deed; therefore the deed had no effect under that statute.

Final disposition (practical effect): DISPOSITION: The interlocutory decree (as the pleadings then stood) was affirmed. The final decree dismissing the bill was reversed only if, within thirty days of rescript, the Superior Court allows a suitable amendment to the bill; in that event a new decree is to be entered setting the deed aside with costs. If no such amendment is allowed within thirty days, the final decree dismissing the bill is to be affirmed with costs.

Implications: The direct consequence is that, on the facts found, the plaintiffs failed to prove undue influence, but the deed may nonetheless be ineffective for failure to comply with the statutory acknowledgment requirements for interspousal conveyances. The court did not purport to announce any broader novel precedent beyond applying existing statutory and case law; it required compliance with G.L. c. 209, § 3 for a husband-to-wife deed to have effect and emphasized procedural constraints on granting relief not pleaded without amendment.

So ordered.

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DUNCAN McOUATT others vs. ELLEN A. McOUATT.

Undue Influence. Husband and Wife. Evidence, Presumptions and burden of proof. Deed, Acknowledgment, Validity, Conveyance between spouses.

In a suit in equity to set aside a deed on the ground that it was obtained by undue influence exerted by the defendant, the grantee, it was error to rule that the burden was on the defendant to prove that he did not exert undue influence. A conclusion that there was no undue influence by a second wife inducing her husband to execute a deed of all his property to her a few hours before his death while he was a patient at a hospital was proper on findings showing that the deed was prepared by an attorney and executed by the husband as a result of a request for it by the wife, and that the husband stated at the time of execution that he knew what he was doing and had intended to do it for some time. Discussion by RONAN, J., of acknowledgment of deeds of real estate. A deed of real estate was not duly acknowledged by the grantor where, after signing it in the presence of a notary public, the grantor did not say anything indicating that he acknowledged it to be his free act and deed, although a certificate by the notary stating that it was acknowledged was attached to it. Under G.L. (Ter. Ed.) c. 209, § 3, a deed of real estate from a husband to his wife, although signed by him, bearing a certificate of acknowledgment before a notary public, and recorded before his death, was of no effect where it appeared that in fact he never made an acknowledgment of it.

RONAN, J.

This is a bill in equity brought by the three children of one McOuatt to set aside a transfer of real estate made by him to the defendant, his wife and the stepmother of the plaintiffs, on the ground that he was of unsound mind and that the transfer was procured by the undue influence of the defendant. The plaintiffs appealed from an interlocutory decree confirming the report of the master after a paragraph therein had been struck out, denying the plaintiffs' motion for a final decree in their favor, and allowing the defendant's motion to confirm the master's report as modified. They also have appealed from a final decree dismissing the bill.

It is not now contended that the master was wrong in finding that the plaintiffs had not sustained the burden of proving that McOuatt was of unsound mind when he executed the deed, and we need not consider that question.

All the subsidiary findings of the master upon the issue of undue influence and upon which he based his ultimate conclusion are set forth in his report. It is our duty to draw our own inferences from those findings. Saltman v. Smith, 313 Mass. 135. Murray v. Bateman, 315 Mass. 113. The ruling of the master that the burden was upon the defendant to prove that she did not exert undue influence upon her husband was wrong, and there was no error in striking out this portion of the report. Cereghino v. Giannone, 247 Mass. 319. Briggs v. Weston, 294 Mass. 452. Mirick v. Phelps, 297 Mass. 250. We summarize briefly the findings of the master. Before her marriage to McOuatt in 1934, the defendant requested him to put the property in both of their names after the marriage, and this matter was discussed between them on four or five occasions up to 1940, but he replied that he would do so as soon as they could go and consult a lawyer. While at a hospital, which he entered in August, 1943, he frequently expressed a desire to consult a lawyer with reference to his property, but he was unable to do so on account of his physical condition. The defendant, as a result of a conversation she had with her husband on the morning of November 12, 1943, spoke to a nurse at the hospital who called in an attorney. The attorney conferred with the defendant, and had the chief physician at the hospital interview McOuatt to determine the latter's capacity to transact business. McOuatt told the physician that he knew what he was about to do, that he was to sign papers to protect his wife, and that he had been intending to do this for some time. The defendant obtained a deed which the attorney had prepared and brought it to the hospital. She told her husband what it was, and in her presence a hospital clerk, who was a notary public, asked him if he knew what he was about to sign. He said that he did and that he was turning over his property to his wife. He executed the deed by making an X with the assistance of the notary public. At some time thereafter he requested the defendant to have the deed recorded, which she did. He died some eight hours after he executed the deed.

A wife has the right to discuss with her husband the advisability of giving her an interest in his property, and to request and, if necessary, to persuade him to make some provision for her benefit. The findings here go no farther than to show the making of such a request by her and fall far short of proving that the husband was induced by any undue influence of his wife, even if the transfer omitted any provision for his children, one of whom he was fond of, and even though it comprised all his property, which appears to be worth only a few thousand dollars. Maynard v. Tyler, 168 Mass. 107. Aldrich v. Aldrich, 215 Mass. 164. Fitch v. Fitch, 249 Mass. 550. Hogan v. Whittemore, 278 Mass. 573.

During the hearings before the master, evidence bearing on the issue of undue influence was properly introduced to show the circumstances attending the execution of the deed. This evidence now gives rise to the question whether this deed was duly acknowledged. In addition to the findings already recited on the issue of undue influence and which now must be considered with reference to the acknowledgment of the deed, the master found that, after the deed was executed, the notary public "notarized" the deed, that nothing was said at this time, and that McOuatt "did not employ any language to indicate that he acknowledged the instrument as his free act and deed."

Title to real estate may be transferred by a deed which has not been acknowledged or which contains a certificate showing a defective acknowledgment, and the deed is good against the grantor and his heirs and those having actual notice, G.L. (Ter. Ed.) c. 183, § 4, as appearing in St. 1941, c. 85, Dole v. Thurlow, 12 Met. 157, Palmer v. Paine, 9 Gray, 56, Hayden v. Peirce, 165 Mass. 359, Cooper v. Monroe, 237 Mass. 192; but the grantor must acknowledge that he has executed the instrument as his free act and deed, and a certificate reciting that the grantor appeared before the officer making the certificate and made such acknowledgment must be attached to the instrument in order to entitle it to be recorded, G.L. (Ter. Ed.) c. 183, § 29; Pidge v. Tyler, 4 Mass. 541; Shaw v. Poor, 6: Pick. 86; Old Colony Trust Co. v. Medfield Medway Street Railway, 215 Mass. 156, so that notice of the conveyance shall be given to all the world. Toupin v. Peabody, 162 Mass. 473. Hayden v. Peirce, 165 Mass. 359, 363. Lamson Co. (Inc.) v. Abrams, 305 Mass. 238. The certificate of acknowledgment furnishes formal proof of the authenticity of the execution of the instrument when presented for recording. The certificate of acknowledgment is of evidentiary character, and the taking of the acknowledgment has always been regarded in this Commonwealth as a ministerial and not as a judicial act and the recitals contained in the certificate may be contradicted, Learned v. Riley, 14 Allen, 109, 113, McDonald v. Willis, 143 Mass. 452, O'Neil v. Webster, 150 Mass. 572, 573; and so may the certificate of a judge before whom is proved the execution of the deed where the grantor dies without acknowledging the instrument and where the certificate from the judge is obtained in order to have the instrument recorded. G.L. (Ter. Ed.) c. 183, § 34. Ayer v. Ahlborn, 174 Mass. 292. New England Bond Mortgage Co. v. Brock, 270 Mass. 107, 111.

It follows that ordinarily an acknowledgment is not an essential part of a deed; but if it is desired to record the deed in order to charge the world with notice of the conveyance, then it is necessary that the deed be acknowledged and that a certificate reciting this fact be attached to the deed. Doubtless, that is the principal function of a certificate of acknowledgment. O'Neil v. Webster, 150 Mass. 572. New England Bond Mortgage Co. v. Brock, 270 Mass. 107, 110.

But the usual relationship existing between an acknowledgment and an instrument of conveyance of real estate may be changed by the Legislature. An acknowledgment may be made an essential part of a deed transferring interests in community property, or in a homestead estate, or in transfers between husband and wife, and in other instances; and unless there is a compliance with the provisions of the statute regulating such transfers, the conveyance is void. Joiner v. Firemen's Ins. Co. 6 F. Supp. 103. Hutchinson v. Stone, 79 Fla. 157. McKinney v. Merritt, 35 Idaho, 600. Wise v. Raynor, 200 N.C. 567. Potter v. Steer, 95 N.J. Eq. 102. Koperski v. Wira, 97 N.J. Eq. 88, Chamberlain v. Spargur, 86 N.Y. 603. Nellis v. Munson, 108 N.Y. 453. Jefferson County Bank v. Hale, 152 Tenn. 648. Hanley v. Richards, 116 W. Va. 127.

General Laws (Ter. Ed.) c. 209, § 3, provides that "conveyances of real estate other than mortgages, between husband and wife, shall be valid to the same extent as if they were sole, except that no such conveyance of real estate shall have any effect, either in passing title or otherwise, until the deed describing the property to be transferred is duly acknowledged and recorded" in the proper registry of deeds. In the absence of such a statute, one spouse could not make a conveyance of real estate directly to the other. See Thatcher v. Omans, 3 Pick. 521. The acknowledgment of a deed making such a conveyance is as necessary to the validity of the deed as the signing and recording of it. It was said in Erickson v. White, 288 Mass. 451, 452, that "This section is complete in itself covering a new subject and conferring rights and privileges not theretofore existing. . . . The validity of a deed such as is described in G.L. (Ter. Ed.) c. 209, § 3, depends entirely upon the terms of that section."

This brings us to the question whether the findings of the master are sufficient to show that the deed was "duly acknowledged," as the judge impliedly found it was.

An acknowledgment is the formal statement of the grantor to the official authorized to take the acknowledgment that the execution of the instrument was his free act and deed. No particular words are necessary as long as they amount to an admission that he has voluntarily and freely executed the instrument. Kelly v. Calhoun, 95 U.S. 710. Qualls v. Qualls, 196 Ala. 524. Jemison v. Howell, 230 Ala. 423. Jackson v. Hudspeth, 208 Ark. 55. Commercial Credit Corp. v. Carlson, 114 Conn. 514. Riddle v. Keller, 16 Dick. (N.J.) 513. Linderman v. Hastings Card Paper Co. 38 App. Div. (N.Y.) 488. Acklin v. First National Bank, 64 N.D. 577. Herron v. Harbour, 75 Okla. 127. In the instant case, there is no finding that McOuatt, after he signed the deed, ever said a word to the one who made out the certificate of acknowledgment. On the other hand, there is an express finding that he did not say anything indicating that he acknowledged the instrument as his free act and deed. The master has set forth all the subsidiary findings relative to this matter of acknowledgment. We are unable to discover anything in his report that would justify a conclusion that McOuatt acknowledged the instrument of conveyance to be his free act and deed. The only conclusion that can be reached from the report is that the deed was not duly acknowledged as required by the statute. G.L. (Ter. Ed.) c. 209, § 3. No effect can be given to it. Erickson v. White, 288 Mass. 451.

The relief now sought on the ground that the deed was not acknowledged goes beyond the allegations of the bill and relief cannot be granted, even though the question appears to have been fully heard before the master, without an amendment to the bill. Donohue v. White, 247 Mass. 479, 482. New England Co. v. Pritchard, 300 Mass. 362. Drury v. Hartigan, 312 Mass. 175.

There was no error in the interlocutory decree as the pleadings then stood, and this decree is affirmed. If within thirty days of the date of rescript a suitable amendment to the bill is allowed by the Superior Court, the final decree is reversed and a new decree is to be entered setting the deed aside with costs; otherwise the final decree entered in the Superior Court must be affirmed with costs.