Stevens v. Mulligan

Lathrop, J.

The first named plaintiff seeks by this bill in equity to restrain the defendant, a judgment creditor of hers, from levying execution by sale of all her right in equity to redeem certain real estate in Northampton, which had been mortgaged by her. In the Superior Court a preliminary injunction was granted. Abbie A. Quigley and Lizzie E. Day were, by an amendment, made parties plaintiff, and the case was afterwards heard by a justice of that court, who found certain facts, and reported the case for our determination.

The land in controversy was conveyed to Mrs. Stevens by her father, William F. Quigley, by an absolute deed dated February 10,1894. As part of the same transaction, she executed on the same day a declaration of trust. Both of these instruments were duly recorded on February 24,1894.

By the declaration of trust, Mrs. Stevens, after reciting the fact of the conveyance, acknowledged and declared that the property was held by her upon the following trusts, namely: 1. To pay taxes and expenses of management. 2. To provide a home, support, and maintenance for her father, so long as he should live, and, upon his death, fit and proper. burial. 3. “ Upon his decease and the final adjustment of all matters connected with said property, to pay and transfer the part and parcel of said estate then remaining, if’ any, in the following manner and shares, namely: To my niece, Abbie A. Quigley, one seventh thereof, 'to my sister, Lizzie E. Day, one seventh thereof, and the remaining five sevenths to myself, wholly discharged from the trust, the issue of any of said parties who shall decease before the said William F. Quigley shall take the parent’s share by right of representation. And if any party shall decease, leaving no issue living at the time of her death, before the death of said William F. Quigley, the share of such party shall vest in equal parts in the survivor.”

The father of Mrs. Stevens is still living, and lives with her.

To enable her to render pecuniary aid to her husband, she and *86 her father, on March 10, 1894, executed an instrument, styled Release of Trust,” which was duly recorded on March 28,1894, by which they attempted to discharge the trust. This instrument, after reciting the fact of the making of the conveyance and of the declaration of trust, proceeded as follows: “ Now know ye, that I, the said William F. Quigley, in consideration of one dollar and other good and valuable considerations to me paid by the said Annetta M. Stevens, (the receipt whereof is hereby acknowledged,) do now, for the purpose of more clearly carrying out my purpose and intent in making said conveyance and correcting an error and mistake therein, hereby testify and declare that I do now cancel, annul, and revoke any and all the uses, purposes, and trusts named by the said Annetta M. Stevens in her said declaration contained, and declare that it is my intent that said Annetta M. Stevens shall hold said estates solely to her own proper use, freed and discharged from any and all trusts : and I, Annetta M. Stevens, do testify and declare that said trusts are now cancelled, annulled, and made void ;for the purpose of correcting a mistake or error in said original papers, and for the purpose of carrying into effect the original intent of the parties hereto.”

The judge has found that there was no error in the declaration of trust; that Abbie A. Quigley was not notified thereof, nor of its attempted revocation and discharge ; that Lizzie A. Day was informed by Mrs. Stevens of the declaration of trust; that it did not appear whether she knew of its attempted revocation; and that neither she nor Abbie A. has given any assent in writing to said revocation.

After this Mrs. Stevens mortgaged the premises to the Salmon Falls Bank.

On June 24,1895, the defendant recovered judgment against Mrs. Stevens for $336.07. Execution issued thereon. The seizure on execution was made on January 18,1896 ; and the injunction issued on April 21, 1896.

1. There is no doubt of the jurisdiction of a court of equity to restrain by injunction a threatened levy of execution upon real estate which is not legally subject to such a levy, and thus prevent a cloud upon title. O'Hare v. Downing, 130 Mass. 16, 19 , and cases cited.

*87 2. While the instrument of March 10, 1894, could not affect the rights of Quigley and Day, we see no reason why it did not operate as a release to Mrs. Stevens by her father of all his rights under the declaration of trust. She then had the legal title to the whole estate, subject to the trusts in favor of Quigley and Day. On the death of her father, Quigley and Day would become entitled to one seventh of the estate each, if . they should survive that event, and also to the other five sevenths, if Mrs. Stevens should die without issue before that event. The interest which Mrs. Stevens took was a vested interest, subject to be devested by her death before her father, leaving no issue. It was an interest which she could alienate, and which could be taken on execution against her, subject to these contingencies. Blanchard v. Blanchard, 1 Allen, 223 . Whipple v. Fairchild, 139 Mass. 262 . Bancroft v. Fitch, 164 Mass. 401 . Pub. Sts. c. 172, § 1. Bill dismissed.