323 Mass. 384

Hanna Hill vs. Ellen J. Peterson & others.


September 28, 1948.

November 3, 1948.

Present: Qua, C.J., Lummus, Dolan, Roman, & Spalding, JJ.

*386«7. A. Anderson & F. A. Anderson, for the plaintiff, submitted a brief.

No argument nor brief for the defendants.

Qua, C.J.

The demurrers of the defendants should have been overruled. The bill alleges that the defendants, residents of this Commonwealth, claim title to a farm in Rhode Island as heirs at law of John Hill, and that Hill in his lifetime bought the farm wholly with money supplied by the plaintiff but in violation of his agreement with the plaintiff and of her instructions took the title in his own name. These are sufficient allegations of a resulting trust in the land in favor of the plaintiff. Bailey v. Hemenway, 147 Mass. 326, 328. Gerace v. Gerace, 301 Mass. 14, 17-18. Cohen v. Simon, 304 Mass. 375, 377. Gowell v. Twitchell, 306 Mass. 482, 486. Druker v. Druker, 308 Mass. 229, 230. MacNeil v. MacNeil, 312 Mass. 183, 187. The allegations appear to be sufficient under the law of Rhode Island. Reynolds v. Blaisdell, 23 R. I. 16,18-19. Cetenich v. Fuvich, 41 R. I. 107, 115-116. Di Libero v. Pacitto, 71 R. I. 361, 366. Szlatenyi v. Cleverley, 72 R. I. 253, 256.

*387The suit may be prosecuted here where the defendants can be reached, although the land is in another State. Pingree v. Coffin, 12 Gray, 288, 304. Adams v. Messinger, 147 Mass. 185, 191. Beardsley v. Hall, 291 Mass. 411, 417. Hawley v. James, 7 Paige Ch. 213. Gardner v. Ogden, 22 N. Y. 327. Massie v. Watts, 6 Cranch, 148, 157-160. Penn v. Lord Baltimore, 1 Ves. Sr. 444, 454. Restatement: Conflict of Laws, § 239, comment b, § 240, comment a, § 243, comment c. Compare Fetch v. Hooper, 119 Mass. 52.

The bill does not show that the plaintiff’s claim is barred by the statute of limitations. See Fogg v. Price, 145 Mass. 513, 516; Gallagher v. Wheeler, 292 Mass. 547, 550. The bill alleges that Hill acquired title in 1931 and died in 1941, and that the plaintiff had no occasion to inquire and did not discover until after his death that the deed was not in her name. This bill was filed in 1946. These facts do not show that the statute had run against the claim. Atlantic National Bank v. Harris, 118 Mass. 147, 153-154. Old Dominion Copper Mining & Smelting Co. v. Bigelow, 203 Mass. 159, 201. O’Brien v. O’Brien, 238 Mass. 403, 411. Akin v. Warner, 318 Mass. 669, 676. G. L. (Ter. Ed.) c. 260, § 21.

The decrees denying the plaintiff’s two motions to strike out pleadings filed by certain of the defendants are not, we think, open to the objections urged by the plaintiff. It was within the discretion of the court to grant leave for further pleading by the defendants after the plea in abatement originally filed in their behalf had been waived (Rule 28 of the Superior Court [.1932]), and in the circumstances the denial of the plaintiff’s motions to strike was the equivalent of such leave, even though entered after the new pleadings had purportedly been filed. No error appears in the failure to impose the “terms” provided for in the second paragraph of Rule 21. Evidence at the hearings on the motions may have shown that the copies required by the rule were given or waived. McCarthy v. Hawes, 299 Mass. 340, 341.

If we assume, without deciding, that the discharge by one of the judges of the Superior Court of “any hearing” before him was an appealable decree, and if we further *388assume that, as the plaintiff insists, this related to a hearing on the original plea in abatement filed by the defendants, still there is nothing in the record to show that such hearing had been fully completed and that the matter was ripe for a decree, as the plaintiff now asserts. Neither is there anything to show that the hearing was not discharged for any one of the many possible reasons which might fully justify the discharge of a hearing even after its completion but before the decision. And after the discharge of the hearing on this plea we see no reason why the defendants’ waiver of the plea could not take full effect.

As the pleadings filed by the defendants after their original plea in abatement have not yet been acted upon by the court below, we intimate no opinion as to their form or substance.

The interlocutory decrees sustaining the demurrers are reversed. The interlocutory decree and the order (here treated as a decree) denying the plaintiff’s motions to strike out pleadings, the interlocutory decree denying the plaintiff’s motion to strike out the defendants’ waiver of their original plea in abatement, and the order (here treated as a decree) discharging “any” hearing are affirmed. The final decree dismissing the bill is reversed. The cause is to stand for hearing upon the pleadings filed by the defendants subsequent to their original plea in abatement filed September 19, 1946.

So ordered.

Hill v. Peterson
323 Mass. 384

Case Details

Hill v. Peterson
Decision Date
Nov 3, 1948

323 Mass. 384




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