Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1910-09-27

of his appointment required by the
statute 1t may be conceded that Mrs
McGuire's conveyance of the property
in 1898 was for the purpose of avoid
ing anticipated claims against her, and
that she could not invoke the aid OF a
court OF equity to obtain reconvey
ance. But none of the defendants in
voked this principle in the conferences
between the parties Immediately after
the discovery OF the deed and note, or
made any claim to hold title to the
property by virtue of that convey
ance. 1t was thereupon mutually
agreed between the plaintiff on the one
side and William Cassidy who was
then trustee under the will of Ellen
Cassidy, and the heirs of Ellen Cas-
sidy named rs defendants, being all
parties in interest, that the plaintiff
should surrender the note for $1,000
then amounting to $3440, to the repre-
SentativeS of the estate of Ellen Cas-
sidy, and in consideration thereof that
the trustee William Cassidy and the
heirs OF Ellen Cassidy should convey
the legal title to the real estate in
question to the plaintiff Dennis Nc
CURE.
pronissory note and q legally enforce
able claim against the estate of Ellen
Cassidy. Even though given by Mrs.
Cassidy as the consideration for con-
veyance from Mrs. Mcclure to defeat
any subsequent claims that might pos
sihly arise against her, such a fraudu-
lent purpose, though known to the
grantee, cannot be set up in defence
to an action on the note.
The plaintiff performed his part of
the contract by surrendering the note
and acknowledging in the memoranda
UNI that il was settled by a recon-
veyance of the property No action
al law can now be maintained upon
the note thus surrendered and can
celed. The plaintiff continued in the
possession of the house exercising do
ninon and control over it, paying the
taxes and making repairs upon it, i'll
the confident belief that he was the
lawful owner of the property.
When the statue says no action is
to be brought to charge any person
upon contract concerning land unless
it is in writing, ''it has in view the
single case in which he is charged
upon the contract only and not that in
which there are equities resulting from
res gestae subsequent to and arising
out of the contract
1.-THE ground is eqitable fraud; not
an antecedent fraud in entering into
the contract, but a fraud inhering in
the consequence of setting up the sta
tute as a defence"
1.-THE ground of the remedy is equit-
able estoppel based on an equitable
fraud After having induced or know
ingly permitted another to perform in
part an agreement on the faith of its
full performance by both parties and
for which he could not well be com
pensated except by specific perform
arce. the other shall not insist that
the agreement is Void.--In other words,
the statute of frauds having been en-
acted for the purpose of preventing
frauds should not be used fraudulent
ly.'
In the case at bar the refusal of the
defendant to complete the transfer of
title to the plaintiff according to the
manifest purpose of the agreement, is
an equitable fraud upon him. By the
plainest principles of justice and con-
ceptions of common right he is en-
titled to relief from the consequences
of that fraud. ana the court is not
prohibited by any reason or authority
from granting such relief, but on the
contrary is warranted in so doing by
the established principles of equity
Jurisprudence.
1t is accordingly the opinion of the
court that the plaintiff is entitled to
a decree authorizing and directing the
defendant Edward p. Murray in his