Mason v. Daly

117 Mass. 403, 1875 Mass. LEXIS 250

Opinion

Gray, C. J.

The application to take evidence, first made after the decree of a single justice and an appeal to the full court, comes too late. No evidence having been reported at the hearing below, nothing is open on the appeal but the question whether the decree is warranted by the allegations and prayer of the bill. Mason v. Lewis, 115 Mass. 334. Stanley v. Stark, Ib. 259.

The executor, having obtained license to sell the real estate of his testator for the payment of debts, may maintain this bill for the redemption or discharge of a mortgage thereon. Gen. Sts. c. 140, §§ 32, 33. Aiken v. Morse, 104 Mass. 277, 278.

The bill alleges that the mortgage and all the assignments thereof were fraudulent and void. The objection that it does not set forth in detail the acts constituting the frauds complained of is not open after decree. Under the allegations of the bill and the prayer for general relief, it was competent for the plaintiff to prove, and the judge to find, that Lewis and wife, fraudulently and for their own benefit, procured the mortgage to be made by the testator, and themselves made assignments thereof to Daly and Smith; and if Daly and Smith were not shown to have known or participated in any fraud, Lewis and wife might be required to pay to Daly and Smith the sums secured by the assignments to them, and then to release the mortgage, and thus clear the testator’s estate of the incumbrance to which it had been subjected by their own fraud.

A decree in chancery need not, by our practice, set forth the evidence, or recite the facts, on which it is based. 38th Rule in Chancery, 104 Mass. 575.

If the amount due to Daly or Smith should be in dispute between him and Lewis and wife, it may be ascertained by further order of a single justice, upon reference to a master or otherwise.

No error of law or fact being shown in the decree appealed from, it must be Affirmed, with costs.