Macurda v. Fuller

Pierce, J. The amended bill alleges that one Tower on January 29, 1902, conveyed the real estate therein described to one Mary H. Smith, to prevent its attachment in an anticipated action of tort for damages resulting from an accident whereby a child was run over by a carriage occupied by Tower and driven by his wife. The bill alleges that Tower “had sufficient other money to meet any reasonable judgment which might be obtained against him,” but does not state that he had sufficient other money or property that could be come at to be attached or taken on execution. The grantee had a mortgage on the premises conveyed to her to secure the payment of $5,000, which so far as appears, remains unpaid. With the delivery of the deed the grantee Smith signed, sealed and acknowledged an instrument with the name of the grantee in blank, describing the same premises simultaneously conveyed to her, and placed this deed, in pursuance of an oral agreement with Tower, in the custody of their common attorney, Samuel A. Fuller, with an oral direction to Fuller “to insert the name of said George A. Tower into said deed as grantee on the termination of said suit and to record the same.” The action was tried and a verdict for the defendant was rendered on January 25, 1903. For reasons that do not appear, final judgment for the defendant was not entered until February 1, 1907. Tower died on or before February 3, 1906, and Smith died on or about March 3, 1907. On October 18, 1906, under a license of the Probate Court, the nature of which nowhere appears, the administratrix of the Tower estate sold to the plaintiffs the second parcel of the lots conveyed to Smith. On February 19, 1907, the grantee Mary H. Smith conveyed to James B. Woodward, who died intestate January 8, 1912, leaving a widow and one heir at law, the appellees, a portion of the parcel described in the deed of the administratrix. The bill charges Woodward, his [344] widow and heir at law “with full notice and knowledge of all the facts set out in this [their] petition.” Fuller “did not at the termination of said action and has not yet written the name of said George A. Tower as grantee in said deed of reconveyance, and has not recorded the same, as directed by said Mary H. Smith.” The prayers are, first: “That the respondent [Fuller] be directed to write in the name of said George A. Tower as grantee in said deed and to place the same on record” and second: “And for such further relief as shall to the court seem proper.” The defendants Woodward demurred. On November 2, 1914, an order was entered sustaining the demurrer. December 17, 1914, a'final decree was entered dismissing the bill. An appeal was taken to the order of November 2,-1914, but no appeal was ever taken to the final decree of December 17, 1914. The failure to take an appeal from the final decree was not the result of an accident or mistake of fact, but was due to the belief that the appeal from the order for an interlocutory decree sustaining the demurrer was in itself sufficient without appeal from the final decree. We assume without deciding that the appeal from the order was an appeal from the final decree when entered and that the suit is properly before this court. The order sustaining the demurrer was right. The instrument delivered to Fuller was without validity and the direction to him to fill the blank space with the name of George A. Tower conferred on bim no legal right because the filling in of such a blank created a substantial part of the deed itself, “ stood on the same footing as signing and sealing, and could be authorized only by a power under seal.” White v. Duggan, 140 Mass. 18, 19. Burns v. Lynde, 6 Allen, 305. Basford v. Pearson, 9 Allen, 387. Phelps v. Sullivan, 140 Mass. 36, 37. No question arises, indeed there can be none, as to the right of Fuller to make delivery of the deed, under paroi authority, whenever it should become a completed instrument by the filling in of the blank in the presence of the grantor. White v. Duggan, supra. Phelps v. Sullivan, supra. In such case the delivery cannot relate to the time of the deposit of the incomplete instrument. [345] but is referable either to the actual delivery or to the time when the instrument became a deed and capable of delivery. The conveyance of a portion of the land by Smith in 1907 was a distinct and unqualified repudiation of the trust agreement and of necessity made it impossible thereafter to confer upon Fuller power to make the instrument a deed by filling the blank with the name of a grantee. By reason of R. L. c. 74, § 1, cl. 4, the grantee from Smith could not have been compelled to reconvey the property herself or to confer upon Fuller a power under seal to execute a deed. The remedy on her refusal would be an action at law to recover the value of the property. Cromwell v. Norton, 193 Mass. 291. Hill v. Hill, 196 Mass. 509. The defendants Woodward, as to whom the bill was dismissed with costs, seek to appeal from an order denying their motion that the clerk be ordered to issue an execution forthwith against the plaintiff. Assuming without deciding that the appeal is rightly before us, we are of opinion that the procedure and the remedy to obtain redress upon the improper refusal of the clerk to issue an execution for costs, is not that sought and followed in the case at bar. Decree affirmed. Appeal dismissed.