Curry v. Dorr

97 N.E. 87, 210 Mass. 430, 1912 Mass. LEXIS 985

• Court: Massachusetts Supreme Judicial Court
• Decided: January 2, 1912
• Status: Published

Opinion

Braley, J.

By the plaintiff’s discontinuance against Mc-Questen, and the verdict ordered for Dorr,, the defendant Bangs remained as the only adversary party, and unless some competent evidence was introduced connecting him with the responsible ownership or efficient control of the premises, the defective condition of which was alleged as the cause of the accident, the action cannot be maintained. Baker v. Tibbetts, 162 Mass. 468, 469. Maloney v. Hayes, 206 Mass. 1.

The record title at that time having stood in the name of one Barlow under a conveyance in fee, absolute upon its face, with« no proof that the consideration had been furnished by the defendant, paroi evidence, that the parties understood, that Bangs should retain the beneficial interest, and receive the rents and profits, was incompetent under our statute relating to the creation of trusts in land, and should have been excluded. R. L. c. 147, § 1. Blodgett v. Hildreth, 103 Mass. 484. Urann v. Coates, 109 Mass. 581, 585. Twomey v. Crowley, 137 Mass. 184.

But, even if given the probative force for which the plaintiff contends, the defendant’s equitable interest was insufficient to support the verdict. The defendant is not shown to have been in occupation, or to have undertaken the management and control of the property as if it were his own, and the legal 'title having been in the trustee he alone would be liable personally for the plaintiff’s injuries. Earle v. Hall, 2 Met. 353, 358, 360. Shepard v. Creamer, 160 Mass. 496. Baker v. Tibbetts, 162 Mass. 468, 469, 470. Falardeau v. Boston Art Students’ Association, 182 Mass. 405. The rulings requested having directed the attention of the judge to this initial difficulty, which the plaintiff had not overcome, a verdict for the defendant should have been ordered.

Exceptions sustained.