Nelson v. Ferdinand

Chapman, C. J. The case is brought before us on bill and demurrer. The demurrer is not accompanied with the certificate required by the Gen. Sts. e. 113, § 5, that it is not intended for delay, but the case having been heard and reserved upon the demurrer for the consideration of the full court, without bringing this fact to the attention of the justice who reserved it, it is too late to take advantage of the defect. The object of the bill appears tobe to procure from the defendants a good title to half an acre of land and a dwelling-house in Melrose. The bill is very inartificially framed, and contains many recitals of facts which are not very obviously connected with each other by averment, but in regard to which no relief is sought, and they are apparently introduced with a view to a more particular statement of the scheme of fraud which is implied in them. The bill commences with an allegation that Timothy P. Nelson became possessed, by deed of his mother, of certain real estate in Boston, which is described; that he is ignorant and of a weak understanding, and simple and unsuspecting; and that his wife is also ignorant and unused to business, and easily deceived and defrauded. It alleges that the defendant, Jasper F. Ferdinand, is shrewd and avaricious, and knew these facts, and sought, by deceit and fraud, to get the said property without a fair compensation. It then sets forth a series of fraudulent acts in pursuance of this design. The first is that he gained their confidence, then got them in debt and embarrassed, and obtained a note from them, and a deed of the property to his wife Anna. But the bill seeks no relief on this account. [307] Among the alleged influences by which he obtained the deed of this property were fraudulent inducements by which he persuaded them to remove to Melrose, and a promise to convey to them half an acre of land in Melrose with a dwelling-house, to be conveyed to the plaintiff Caroline. But he fraudulently induced them to take a deed of a parcel which contained less than 8000 feet of land, and was without access to any street; then fraudulently obtained their note, or pretended to do so, and took a mortgage to his wife Anna to secure a fictitious note of $400, and has attempted to foreclose the mortgage; and fraudulently obtained another note to his wife. She transferred this note, and an action was brought thereon, and judgment fraudulently obtained, and the equity of redemption has been purchased and is now held by her. The defendants are now attempting to expel the plaintiffs from the land, and to obtain possession thereof. The purpose of the bill therefore does not appear to be to redeem what is admitted to be a bona fide mortgage, but to obtain a title to the half acre of land and the house which, in accomplishing his fraudulent purpose, the defendant Jasper promised to convey to them, and which has never been conveyed, and to Obtain it free from the incumbrance of this fraudulent title which the defendant Anna has obtained, but on condition of making payment of any balance of account that may be due, upon an adjustment of their accounts. It is necessary that both the husbands and wives should be joined in the bill because of their connection with the titles. And the bill is not multifarious, because it seeks relief merely by a transfer of a good title to the half acre of land and house in Mel-rose. If the allegation is sustained by the evidence, it is immaterial whether the defendant Anna participated in the fraud, or acted as the instrument of the husband, or whether any offer of payment has been made. There is no adequate remedy at law. Demurrer overruled.