Home BAY STATE CAFE, INC. vs. LOUIS R. COHEN.

334 Mass. 705

June 6, 1956

Decision affirmed. During the course of a hearing on a bill in equity brought by the plaintiff, which was holding certain premises in Boston as assignee of a lease, to prevent the defendant owner from evicting it, the parties agreed in a writing dated April 17, 1954, to settle their controversy, and two instruments in the form of final decrees and bearing the assent of all parties in interest were left with counsel for the defendant; one favorable to the plaintiff and requiring reinstatement of the lease was to be entered if certain things according to the written agreement of April 17, 1954, were performed by the plaintiff by July 2, 1954, otherwise the decree terminating the lease and dismissing the bill was to be entered. Counsel for the defendant caused the latter decree to be entered on July 7, 1954. The plaintiff on July 9, 1954, filed a motion to vacate this decree and after a denial of this motion he filed a second motion on October 29, 1954, to vacate the decree of July 7, 1954. The plaintiff has appealed from a decree denying his motion of July 9, 1954. He has also excepted and appealed from the denial of his motion of October 29, 1954. No exceptions were perfected. We assume in favor of the plaintiff, without deciding, that these appeals are properly here, see Carilli v. Hersey, 303 Mass. 82 , 86-87, because in any event the ultimate decision must be against the plaintiff. Commonwealth v. McHugh, 326 Mass. 249 , 275. We have examined the evidence. The case comes within the familiar rule that, upon an appeal with a transcript of evidence but without any report of the material facts, the entry of a decree imports the finding of every fact necessary to support the decree, Slater v. Munroe, 313 Mass. 538 , 540; Marlowe v. O'Brien, 321 Mass. 384 , including the implied finding that the entry of the decree on July 7, 1954, was warranted by breach of the written agreement by the plaintiff of April 17, 1954. There was no error in the denial of the motions and the decision of the court must be affirmed.

Home MARY FAZIO & others vs. ALICE M. FAZIO & others.

334 Mass. 705

June 6, 1956

Decree affirmed with costs of the appeal. This is a bill in equity brought by the daughters of Mary Fazio and Michele Fazio and by his widow, the said Mary Fazio, against the heirs at law of Charles E. Fazio, a son of the said Mary and Michele Fazio, for the cancellation of certain deeds to a parcel of farm land purchased by his father but title to which was taken in the name of Charles under an express trust for the benefit of his father. On January 17,

Page 706

1941, Charles conveyed the land to a straw. Michele Fazio joined in signing, executing, and acknowledging this instrument. The straw then conveyed to Charles individually with no mention of a trust. Charles on September 15, 1952, through a straw conveyed the premises to himself and the defendant Alice M. Fazio as tenants by the entirety. The judge found that Michele bought this farm land so that Charles who was suffering from poisonous gas inhaled during the first World War could lead an outdoor life as recommended by his physicians. The judge found that Michele was instructed as to and knew the effect of whatever deeds he signed, that he did so voluntarily and understandingly, and that there was no fraud, duress, or breach of trust. An examination of the evidence shows that the judge was not plainly wrong in so finding and in ordering the entry of a final decree dismissing the bill with costs.