National Mahaiwe Bank v. Barry

125 Mass. 20, 1878 Mass. LEXIS 5

Opinion

Gray, C. J.

Upon the case stated in the bill, equity will charge the land purchased in the name of Mrs. Barry with a trust in favor of the plaintiff bank for the amount of $1500 of its money, which had been wrongfully obtained by her son and invested in the purchase of that land. Bresnihan v. Sheehan, ante, 11. United States v. State Bank, 96 U. S. 30. The demurrer was therefore rightly overruled.

The decision of the presiding judge at the hearing on the merits is not brought up by appeal under the Gen. Sts. c. 113, §§ 8, TO, but by bill of exceptions under e. 115, § 7. It is not therefore open to revision in matter of fact, and the only question before us is whether, as matter of law, the evidence introduced justified a decree for the plaintiff.

That evidence warranted the judge in inferring that the son, being a minor and living with his parents, received the money from a thief, knowing it to have been stolen from the plaintiff; that neither the son nor his parents appeared to have had any other sufficient means to make the purchase of the land from Girling; and that therefore it must have been purchased with the money of the plaintiff. Upon this state of facts, the plaintiff was entitled to a decree, subject, of course, to the rights of Girling (whose good faith is not questioned) under the mortgage given back to him for part of the purchase money.

Decree for the plaintiff accordingly.