Equity Pleading and Practice, Master. Evidence, Inference, Absence of witness, Admission.
A master, to whom a suit in equity was referred under a rule which required him "to hear the parties and their evidence and report his findings to the court on or before [a certain date] together with such facts and questions of law as either party may request," is not required to report the evidence or any part of it.
At the hearing by a master of a suit in equity by a man against one who, when the suit was brought, was his wife but who, while the suit was pending, was granted a decree of divorce for his wrong, to compel conveyance to the plaintiff of certain real estate, the legal title to which, he alleged, was placed in the defendant's name although it was purchased with his money and she had no interest in it, the plaintiff testified that, in the presence of other persons when the final arrangements for the passing of papers were being made, he said to the defendant that she had no interest in the property and that she assented thereto. The defendant denied that such a statement was made. The plaintiff did not call as witnesses those whom he had testified were present when those conversations were held, and from that fact the master drew an inference unfavorable to him. Held, that there was no error of law in drawing such an inference.
Findings of fact by a master to whom was referred a suit in equity under a rule which required him "to hear the parties and their evidence and report his findin to the court on or before [a certain date] together with such facts and questions of law as either party may request" are not reversible unless shown by the report to be erroneous.
Neither a notice, signed by the defendant in the suit above described in the name of the plaintiff while they were living together, placed upon a coal hoist used by a tenant of part of the property in suit and reading, "Each tenant is requested to prevent coal teams from being driven on the lawns or walks;" nor a receipt, made out by the defendant and at her request signed by one whom she was paying for work done around the house and stating that the payment was received from the plaintiff, constituted a memorandum in writing under R. L. c. 147, § 1, sufficient to establish that the defendant held the land subject to an express trust for the plaintiff's benefit.
The master who heard the suit above described concluded, from facts found by him, that the plaintiff had title to the two parcels of real estate in question taken in the name of the defendant for his benefit and for her benefit and for the benefit of both of them as a family, with no thought of future separation but with the idea that, in the event of his death, his wife would have the property without the necessity of proving a will or involving his estate in administration proceedings. Held, that a decree dismissing the bill was proper.
A denial of a, motion by the plaintiff to recommit the report of the master in the suit above described was affirmed upon appeal, the motion being one addressed to the discretion of the court and there being nothing to indicate that such discretion was not wisely exercised.
RUGG, C.J.
This is a suit in equity whereby the plaintiff, from whom the defendant, his former wife, has obtained a divorce for his wrong, seeks to compel conveyance to him of certain parcels of real estate. These parcels were conveyed to the defendant when she and the plaintiff were living together happily as husband and wife. The case was referred to a master under a rule which required him "to hear the parties and their evidence and report his findings to the court on or before [a certain date] together with such facts and questions of law as either party may request." This did not require a report of the evidence or any part of it. The duty of the master was performed when he reported such facts pertinent to the issues as he found and such as he was requested by either party to find with his rulings of law. Warfield v. Adams, 215 Mass. 506. Bradley v. Borden, 223 Mass. 575, 586. Mathews v. Colburn, 215 Mass. 571. Aronson v. Orlov, 228 Mass. 1, 9. The master was sufficiently favorable to the plaintiff in the form of his report and the treatment of requests for findings and rulings. Cook v. Scheffreen, 215 Mass. 444.
There was no error of law in drawing an unfavorable inference against the plaintiff because he failed to call available witnesses to corroborate his version of conversations between himself and wife. Howe v. Howe, 199 Mass. 598. Rioux v. Cronin, 222 Mass. 131, 135. Buckley v. Boston Elevated Railway, 215 Mass. 50, 56. McKim v. Foley, 170 Mass. 426.
The master's findings of fact are not reversible unless shown by the report to be erroneous. Greenhood v. Richardson, 226 Mass. 208. Jenanyan v. Fisher, 229 Mass. 472.
The plaintiff can recover lands thus conveyed to a wife during coverture only when there is an enforceable trust. There was here plainly no express trust. There was no instrument in writing which could as matter of law be held a compliance with the statute of frauds. The receipts given by her fall far short of such instrument. It was said in Pollock v. Pollock, 223 Mass. 382, at page 384, "To establish a resulting trust the husband must prove that he furnished himself the entire consideration or a specific and definite part thereof, for which it was intended he should receive a determinate and fixed fraction of the whole estate conveyed. Bailey v. Hemenway, 147 Mass. 326. Skehill v. Abbott, 184 Mass. 145. In addition, the evidence must be clear that it was not intended at the time of conveyance that the wife should take a beneficial interest in the property by way of gift, settlement or advancement. Cairns v. Colburn, 104 Mass. 274. Edgerly v. Edgerly, 112 Mass. 175. Patterson v. Patterson, 197 Mass. 112."
The case at bar on its merits is within the authority of numerous decisions. English v. English, 229 Mass. 11. Carr v. Frye, 225 Mass. 531. Keown v. Keown, 230 Mass. 313. Tileston v. Tileston, 234 Mass. 530.
The motion to recommit the report to the master was addressed to the discretion of the court and there is nothing to indicate that it was not wisely exercised. Smith v. Lloyd, 224 Mass. 173, 175. Baush Machine Tool Co. v. Hill, 231 Mass. 30, 41. Clark v. Young, 231 Mass. 156. Thompson v. Davis, 225 Mass. 385. Without reviewing the record in detail, it is enough to say that the plaintiff fails to show any reversible error.
Decree affirmed with costs.