Equity Pleading and Practice, Exceptions; Appeal; Master: character of report, exceptions to report. Deed, Consideration. Sale. Equity Jurisdiction, To set aside sale and deed which were mere pretence.
It is preferable equity practice that questions of law arising in a suit in equity be brought to this court by appeal from a final decree rather than by exceptions to rulings of the trial judge.
Where, in a suit in equity by the administrator of the insolvent estate of a woman, who had conveyed certain personal property to one who for many years had been employed by her and her husband and had been a member of her household, to get possession of the property on the ground that the conveyance was without consideration and a mere pretence, a master finds that the plaintiff's intestate at the time of the conveyance was a woman of business experience, that she had been unsuccessful in business, that at about the time of the conveyance she had concealed jewelry in a safety deposit box under an assumed name, that she was insolvent and was being pressed by creditors, that property of hers in the State of Michigan was being levied on, and that the daughter of the defendant had been treated by her as her own child, a conclusion is warranted that the conveyance to the defendant was without consideration and was a mere pretence, especially where the master also finds that he does not believe testimony of the defendant to the effect that the consideration for the conveyance was money paid by the defendant to the plaintiff's intestate at her request.
A conveyance of personal property by an insolvent person by an instrument under seal without actual consideration may be set aside after the grantor's death by the administrator of his estate although the grantee did not share in a design of the grantor to defraud his creditors, there having been no sale in any true sense.
Exceptions to a report of a master in a suit in equity based on objections that the "master, in excess of his authority and to the prejudice of the defendants, . . . included in his report conjectures, surmises and suspicions, and . . . founded thereon findings and inferences of material facts," were overruled because, disregarding all parts of the report justly susceptible of such characterization, or open to criticism for other reasons, enough positive findings of fact were left to support the ultimate conclusions.
RUGG, C.J.
It has been repeatedly pointed out that the preferable equity practice is to bring questions of law to this court by appeal from final decrees and not by exceptions. McCusker v. Geiger, 195 Mass. 46, 52. Welsh v. Briggs, 204 Mass. 540, 549. Assuming in favor of the defendants that their requests for rulings were rightly presented and all their exceptions are open and considering the record on its merits, no error of law is disclosed.
This is a suit in equity by administrators of the estate of Matilda M. Chesbrough seeking to set aside a sale of personal property in form executed by her during her life to the defendant Noe and another sale in form by him of the same property to the defendant Austin. The case was referred to a master to hear the parties and their evidence and report his findings to the court together with such facts and questions of law as either party might request. There was no report of the evidence. The master found that there was never a transfer of title in good faith from Mrs. Chesbrough to Noe, that no consideration was paid therefor and that the whole transaction was a sham, and that Mrs. Chesbrough, believing that she could not pay her debts, went through the form of transferring the property to Noe in order to put it out of the reach of her creditors, and that the pretended sale from Noe to Austin was a mere pretext without substance or reality. The master's report was confirmed.
The facts and circumstances as to the alleged delivery of the bill of sale to the defendant Noe were not as matter of law equally consistent with payment of a consideration by him as with the inference that no consideration was paid. Whether a consideration was in truth paid was a question of fact. The testimony of the defendants on that subject was open to suspicion by reason of its inherent improbability and might well have been found to be untrustworthy.
The burden of proof that there was no consideration for that alleged transfer was amply supported by the evidence. The motive of Mrs. Chesbrough for apparently divesting herself of title to the property and the explanation offered by the defendant Noe as to the amount of money paid, the source from which it was obtained, and the circumstances in which it previously had been kept, combined to taint the transaction with strong suspicion. The testimony introduced in behalf of the defendants manifestly was discredited by the master. He was not obliged to believe it. Commonwealth v. Russ, 232 Mass. 58, 70.
The findings of fact made by the master must be accepted as final because the evidence is not reported. Those findings were not inconsistent with the conclusion in favor of the plaintiffs. The facts thus found did not require a conclusion in favor of the defendants. An apparent sale may be perfect in all the technical forms of an actual transfer under seal and still be a pure pretence. This being the view which the master took of the affair, there is no reason in law why his decision should not stand. It is of no consequence that the defendant Noe did not share in Mrs. Chesbrough's design to defraud her creditors, if the sale was a pretence without substance. The principle of Cohen v. Levy, 221 Mass. 336, is not relevant. The sale is set aside, not because it was in fraud of creditors but because there was in truth no sale in any true sense.
The numerous exceptions to the master's report on the ground that its conclusions are based on surmises, conjectures and suspicions were overruled rightly. Disregarding all parts of the report justly susceptible of such characterization, or open to criticism for other reasons, enough positive findings of fact are left to support the ultimate conclusions. The objections urged do not reach to the essential soundness of the findings. Davis v. Boston Elevated Railway, 235 Mass. 482, 498 to 502. It cannot be held that the findings as to the transactions with one Tromble respecting taxes and mortgage interest do not find support in the reported evidence and other relevant facts.
It is not necessary to examine the objections to the report or the requests for instructions one by one. The exceptions disclose no reversible error.
Exceptions overruled.