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tion of fraudulent intent, in all cases aris- | one at bar as to make the language quoted ing under the provisions of this act, shall be deemed a question of fact.' It is enough to say that the rights of the appellees do not depend upon the statute of frauds.

As to the recognition in this state of constructive frauds, that is, cases where actual fraud was not intended, but, from the conduct of the parties, some rule of public policy has been violated or some advantage has been gained by reason of some special confidential or fiduciary relation, the cases are numerous. Where, in a pleading or special finding, fraud must be made to appear, except there be some statute or special rule to the contrary, the facts constituting the fraud must be stated, and mere epithets are not required, nor are they available. It would seem a contradiction of terms to say that constructive fraud must be found as a fact, when in relation to certain well-recognized transactions, it is fraud ipso jure. Nor is it less a contradiction as to actual fraud to say that it exists as a fact when it only exists by the application of legal or

equitable rules to the facts.

as applicable here as in the case considered by the learned judge who wrote that opinion. In the case at bar the facts alleged show fraud as conclusively as those found by the court in the case from which we have quoted, and, in addition thereto, the complaint in this case contains general charges of fraud in the procurement of the judgment. While, under the foregoing decision, such allegations may not be essential where the relation of parent and infant children is shown, they clearly indicate the theory of the pleading, and do not detract from its sufficiency.

The essential principle which differentiates the class of cases to which the one at bar *belongs from many cases where fraud is alleged in the procurement of a judgment, is the relation of trust and confidence which the law recognizes as existing between parent and infant children, with the resulting duty of the parent not to so deal with his helpless and dependent infant children as to obtain any advantage or profit on account of their relation to, and dependence upon, him. Where such relation is shown to exist, and it cupying a superior position, has dealt with

In the

absence of the facts making it manifest, the law will not indulge the presumption that

fraud exists. On the contrary, presumptions are in favor of honesty and fair dealing. But when facts appear the legal test is applied, and the question is determined. The remaining question is as to the sufficiency of the facts found to raise the inference of fraud. We have no doubt of their sufficiency. The father of children—mere babes-having the custody of their persons, and being their natural guardian, both as to person and property, owed to them the highest concern for their welfare. Above all interests, it was his duty to see that they were not deprived of their rights by his own wrongful conduct. He owed a duty also to the court in which the cause was pending, and that was to create no misapprehension in the mind of the court as to the bona fides and adversary character of the cause. The facts found dis

close a violation of all these duties. As to the merit of his claim of title, little or no defense is made in this court, and it appears that he not only secured active support for his own side of the case, but secured the participancy of a guardian ad litem, appointed and serving 'for the purpose of accommodating the plaintiff in the procurement of the order and decree he desired in said cause.' He was thus enabled to control both sides of the case and give to it the appearance o bona fides as an adversary proceeding, while it was all for his accommodation, to his advantage and to the detriment of most helpless infants. Such control, with such results, amounts to fraud. Burnett v. Milnes, 148 Ind. 230 [46 N. E. 464], and cases there cited."

We have quoted at length from the fore going decision because the facts and issues

further appears that the parent, or one oc

the other one in such a way as to obtain a business transaction, it has been held that substantial benefit or advantage in any the presumption of undue influence arises. Keys v. McDowell, 100 N. E. 385-387. said: "Where the relation of trust and conIn Smith on the Law of Fraud, § 23, it is fidence exists between two parties, whether it be actual or in contemplation of law, it is the duty of the person in whom confidence is reposed to disclose to the other all the material facts which are within his knowledge, and, knowing the other party to be ignorant of those facts, he is guilty of concealment if he does not disclose them, and is guilty of fraud in both law and equity.

Between parties occupying these relations duty requires and the law exacts the utmost good faith and fair dealing, and

omission to disclose facts known to one and not to the other is in law concealment."

of a judgment by a parent against his infant The question of fraud in the procurement child, wholly under his control, is determined from principles which are identical with those which are applicable to cases where a parent obtains an undue advantage in a business transaction with his infant children out of court. In the case at bar it appears from the pleading that the relations of parent and children existed; that the children were minors not under guardianship, and wholly under the control and influence of the parent; that they were wholly ignorant of their rights and the nature of the transaction; that the parent failed to inform them thereof and wrongfully obtained a sutstantial advantage by procuring a judgment


both sides of the case; that by his manipula- [and child or any similar relation of trust tion the guardian ad litem was appointed and confidence existed between the plaintiff and the case so managed that no considera- and the minor defendant in that case. tion was given by him to the rights of the the second place, it is not shown that both infant defendants, and he was not present sides of the case were manipulated and conwhen the judgment was rendered. For such trolled by-the plaintiff. The case turns upon a state of facts the conclusion is inevitable the propoŝition that a sheriff had made a that the court was so deceived, misled, or false return to the summons, which was in thrown off his guard that a judgment was all things regular upon its face, but it does secured that could not have been obtained not appear that the plaintiff was in any except by such deceptive and fraudulent sense responsible for or a party to the makmethods. Such manipulation is misleading ing of such false return. The paragraph was both as to the good faith of the parent and held insufficient to show fraud in the prothe adversary character of the proceeding. curement of the judgment. The opinion In fact, the latter and essential element does shows that the theory was that the court not exist except in naked form which does had been misled by the false return of the not meet the requirements of the law. The sheriff, for which the plaintiff was not relaw is jealous of the rights of infants and sponsible, and that the court has a right to other dependents. It presumes that parents rely and act upon the return of the sheriff. who owe both the natural and legal duty of The opinion cites Cotterell v. Koon, and in guarding and protecting the persons and no way criticises it. The two decisions are property of their children will faithfully not in conflict. discharge such duty. While the rules of law are the same as to all persons in like situation, the law takes cognizance of the helpless and defenseless situation of minors when their parents turn against them, betray the trust reposed in them, and use it as a means of obtaining an advantage they could not secure without the abuse of the confidence and dependence of their children. Where it is made to appear that the relation of parent and child has been abused to the advantage of the parent, and that such abuse has enabled the parent to procure a judgment against his children that otherwise could not have been obtained, the law declares the judgment so procured void, and recognizes any suit that seeks to relieve the children from the effects thereof on the ground of fraud in its procurement as a direct, and not a collateral, attack upon the judgment. In the Cotterell Case, supra, it is expressly stated that such control, with such result, amounts to fraud. And in the case of Bur


nett v. Milnes, 148 Ind. 230, at page 234, 46
N. E. 464, at page 465, wherein concealment
of facts from infant defendants was shown,
the court said: "The facts here stated make
a case of fraud upon the court and upon the
rights of the infant defendants.
is shown by the allegations of the complaint
that appellant either directly or indirectly
managed and controlled both sides of the
case, and that the judge was imposed upon.
Under such circumstances, a final judgment,
even in a criminal case, has been declared

The appellee cites the case of Miederich v. Lowenstein, supra, as decisive of the question that the judgment quieting the title against appellants is an absolute bar to any interest they may have had in the land in controversy. The case may be readily distinguished from Cotterell v. Koon, supra, and other similar decisions. In the first place, it does not appear that the relation of parent

The conclusion we have reached is that each paragraph of the complaint is sufficient, and that the demurrers should have been overruled, since they show that the judgment was procured by fraud and is void, it affords no protection to an innocent purchaser for value. From one viewpoint this seems to be a harsh rule, but, on the other hand, it is an equally hard proposition to permit helpless and dependent minor children to be defrauded out of property.

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[7] Where the record discloses, as in this case, that a father has procured a judgment against his infant children without any presentation of their meritorious defense, which defense is apparent from the record itself, the facts. so appearing constitute a warning to any purchaser, which should cause him to investigate and learn to his satisfaction that the judgment showing such relationship and apparent injustice has not been obtained by any fraud or deception.

The judgment is reversed, with instructions to the lower court to overrule the demurrer to each paragraph of the complaint and for further proceedings not inconsistent with this opinion.

ADAMS, C. J., and HOTTEL, LAIRY, SHEA, and IBACH, JJ., concur.

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which continued, and that the individual defendants were officers of the corporation and had improvidently at least endeavored to sell further bonds, which would increase the bonded indebtedness of the company and decrease the security of those already sold; that notwithstanding the corporation's insolvency, acting through the individual defendants, it had sought to sell the most valuable part of its property and to wrongfully take such part from the security of the mortgage; and that the trurtee had declined to proceed for the bondholders' protection. Held, that the bill was maintainable, whether the principal of the bonds was due or not, or whether the coupons were paid or unpaid, in order to prevent the impairment of the value of the bondholders' security.

[Ed. Note.-For other cases. see Corporations, Cent. Dig. §§ 1843-1853, 1855; Dec. Dig.




Where all the defendants to a bondholder's

bill to restrain impairment of the security, were materially concerned, some in one way and some in another, with the matter of which plaintiff complained, the bill was not multifarious because, to a certain extent, the particular acts of one of the defendants were distinct from those of others; all, however, tending to the same general result injurious to complainant. [Ed. Note.-For other cases, see Equity, Cent. Dig. §§ 342, 371-379; Dec. Dig. § 150.*] 3. EQUITY (§ 232*)—BILL-DEMURRER.

Where a demurrer to a bill could not have been sustained as a whole, it was properly overruled, though some of the grounds were well taken.

[Ed. Note.-For other cases, see Equity, Cent. Dig. § 508; Dec. Dig. § 232.*]

Report from Superior Court, Suffolk County; Charles F. Jenney, Judge.

Bill by Charles O. Whitmore against the International Fruit & Sugar Company and others. A demurrer to the bill was overruled, and the case reported to the Supreme Judicial Court. Affirmed.

Wm. D. Turner and Stephen S. Fitz Gerald, both of Boston, for plaintiff. Young, Hill, Ludden & Marks, of Boston, for defendants.

HAMMOND, J. The demurrers were overruled by a justice of the superior court, and the case is before us upon a report made by him under R. L. c. 159, § 27. If the order overruling the demurrers was erroneous, the bill is to be dismissed with costs, unless further amendment shall be allowed. If the order was right, the defendants are to an

swer over.

[1] We adopt as a sufficiently full and accurate summary of the bill the one given by the justice of the superior court in his "Memorandum of Decision," which is in the following language:

does not exceed in value $50,000. There have been issued bonds secured by said mortgage to the par value of $100,000, of which amount bonds to the par value of $250,000 are still the property of the Fruit Company; but bonds to a par value in excess of $75,000 have been transferred to certain of the defendants as trustees of the Cuban-American Trust, of which amount bonds to a par value in excess of $40,000 are still in the possession of the persons named as trustees, either individually or as such trustees, and 'a large number' of the bonds have been sold by the Fruit Company to bona fide purchasers through false and fraudulent misrepresentations, set forth in detail, some of which were clearly statements as to existing facts.

"2. The individual defendants caused the

Fruit Company to be organized as a fraudulent scheme for the purpose of transferring to it the property included in the mortgage at a grossly excessive price, and of selling said bonds and the stock of the corporation by means of false and fraudulent representations, all as set forth in paragraphs 3, 4, and 5 of the amended bill. Recitals of subsequent action are made in said paragraphs. It seems that at the most these allegations and the recitals referred to are either preliminary to the main part of the bill or matters of inducement and not sufficient for the granting of relief.

"3. The plaintiffs, relying on said representations and believing them to be true, purchased for a valuable consideration, and still own, certain of the bonds.

"4. The individual defendants controlling the Fruit Company have caused it to transfer to themselves, individually or as trustees of the Cuban-American trust, the bonds in excess of the par value of $75,000 as hereinbefore referred to without adequate consideration, and these transfers are alleged to be a fraud on the bona fide holders. These allegations are vague. But the individual defendants stand in a confidential or trust relation to the corporation. See paragraph 1 of the bill. These bonds in excess of $40,000 in par value are still in the possession of the defendants, who are trustees of the Cuban-American trust, individually or as such trustees.

"5. The individual defendants, as officers of the Fruit Company, have misappropriated money and property of that company and have fraudulently and for their own profit caused unfair and inequitable contracts to be entered into between it and three of their "The bill as amended, in substance alleges: number as trustees for said Cuban-American “1. The entire property, 'for the most part Trust Company. for the sale of the bonds of barren or covered with woods,' of the Inter- the company, which must be construed as national Fruit & Sugar Company, herein- including the bonds of the par value of $250,after called the Fruit Company, is included 000 still owned by the Fruit Company, and it in a mortgage to the International Trust is alleged that said unfair and inequitable Company, hereinafter called the Trustee, and contracts have been secured by means of

false and fraudulent representations. Many | lar acts of one are distinct from the particuof these allegations are also somewhat indefinite.

"6. The company is alleged to be insolvent, and on July 1, 1911, defaulted on the payment of the interest due on some of its bonds, and that default still continues as to some bonds, including the bonds owned by the plaintiff Cadwell. The trustee has notice of said default and has been requested by the plaintiffs to commence proceedings for the foreclosure of the mortgage, but refuses so to do. The provisions of the mortgage as to foreclosure are set forth in paragraphs 11 and 12 of the amended bill.

"7. The individual defendants fraudulently plan to cause the Fruit Company to transfer 5000 acres of its lands, including its only valuable and income producing property, without fair or adequate consideration, which if done by this insolvent corporation will seriously impair the security of its bonds. The trustee, it is alleged, intends to release this land from the mortgage, although it knows of the default on the interest of the bonds, without payment of the amount required by the mortgage.

"8. The mortgagèd property is not sufficient to pay in full the bonds now in the hands of bona fide bondholders for value.

"To summarize in part: An insolvent corporation has issued mortgage bonds, a part of which have been sold by means of fraud. It still holds part of the bonds. The mortgaged property is not sufficient to pay the bonds already sold. There has been a default in interest on the part of the bonds, which default still continues. The individual defendants, the officers of said corporation, are improvidently at least endeavoring to sell bonds which will increase the amount of the bonded indebtedness and decrease the security for the bonds already sold. withstanding its insolvency, the corporation, acting through the individual defendants, seeks to sell the most valuable part of its property and to wrongfully take said part òut from the security of the mortgage. The


trustee declines to proceed for the protection of the bondholders."

The relief prayed for is substantially the foreclosure of the mortgage with appropriate proceedings to prevent the impairment of the value of the security of the bondholders either by fraudulent issue of additional bonds or by an improvident and unwarrantable sale of the land covered by the mortgage. There can be no doubt that at least to prevent such impairment the bill is maintainable whether the principal be due or not, or whether the coupons be paid or unpaid.

lar acts of others, all tending to the same general result injurious to the plaintiff. See Parker v. Simpson, 180 Mass. 334, 341, 62 N. E. 401; Davis v. New England Railway Publishing Co., 203 Mass. 470, 89 N. E. 565, 25 L. R. A. (N. S.) 1024, 133 Am. St. Rep. 318.

[3] The demurrers therefore could not have been sustained as a whole, and hence were rightly overruled; and that would be so even if they were sustainable as to some of the grounds alleged.

It follows that by the terms of the report the defendants are to "answer over"; and it is So ordered.


(214 Mass. 475)

(Supreme Judicial Court of Massachusetts. Norfolk. May 22, 1913.)


One impliedly inviting another to use a private driveway owes the duty of using reasonable care to keep the way in a safe condition for use, or at least give warning of any dangers attendant on its use which are not known to the latter, and which the former knows, or in the exercise of reasonable care ought to know.

[Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 42-44; Dec. Dig. § 32.*] 2. NEGLIGENCE (§ 50*)-DANGEROUS PREMISES -LIABILITY OF OWNER.

A driver, using a private way on the imhis wagon by an overhanging branch. The way plied invitation of the owner, was knocked from was sufficiently wide, and there was only a narrow space, near the outside edge of the gutter, where the branch was near enough to the surface of the ground to reach the top of the wagon driven by the driver. He had been using the driveway almost daily for several months, driving immediately under the branch. The owner of the driveway knew that fact. Held, that the owner was not guilty of actual negligence in allowing the branch to overhang the driveway, or in not warning the driver of the danger arising therefrom.

[Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 62, 63; Dec. Dig. § 50.*]

Exceptions from Superior Court, Norfolk County; John C. Crosby, Judge.

Action by Mary E. Shaw, administratrix, against Lizbeth D. Ogden. There was a verdict for plaintiff, and defendant brings exceptions. Sustained, and judgment entered in her favor.

Louis S. Thierry and John H. Appleton, both of Boston, for plaintiff. John Lowell and Jas. A. Lowell, both of Boston, for de


SHELDON, J. The case was submitted to the jury under instructions which do not appear to have been excepted to and which we now must take to have been full and accurate, unless the defendant was entitled to

[2] The bill is not multifarious. All the defendants were materially concerned, some in one way, some in another, with the matter of which the plaintiff complains, and it matters not that to a certain extent the particu

That she was not negligent either in maintaining the branch or in failing to warn him of a possible danger therefrom. If she had given the same implied invitation to one who was a mere stranger to the locality, or to one whose team reached above the height of the branch, as in Embler v. Wallkill, 57 Hun, 384, 10 N. Y. Supp. 797, a different situation would have been presented.

have a verdict ordered in her favor.
is the only point which we have to consider.
[1] The jury had a right to find that the
plaintiff's intestate, while in the exercise of
due care, was knocked from the seat of his
wagon upon the defendant's driveway by the
overhanging branch of a tree. He had come
upon the premises and was using the drive-
way of the defendant at her implied invita-
tion. She owed to him the duty of using
reasonable care to keep the driveway in a
safe condition for him to use, or at least of
warning him against any dangers attendant
upon its use which were not known to him
and which either were known or in the ex-
ercise of reasonable care ought to have been
known to her. Elliott v. Pray, 10 Allen, 378,
87 Am. Dec. 653; Carleton v. Franconia Iron

A verdict for the defendant should have been ordered in accordance with her request; her exceptions must be sustained; and under St. 1909, c. 236, judgment must be entered in her favor.

So ordered.


(214 Mass. 573)

(Supreme Judicial Court of Massachusetts. Suffolk. May 23, 1913.)


& Steel Co., 99 Mass. 216; Currier v. Boston JAGLENASKI v. ANDERSEN COAL MINMusic Hall, 135 Mass. 414; Curtis v. Kiley, 153 Mass. 123, 26 N. E. 421; Garfield & Proctor Coal Co. v. Rockport-Rockland Lime Co., 184 Mass. 60, 67 N. E. 863, 61 L. R. A. 946, 100 Am. St. Rep. 543; Hamilton v. Taylor, 195 Mass. 68, 80 N. E. 592; Marston v. Reynolds, 211 Mass. 590, 98 N. E. 601; Chapman v. Rothwell, E., B. & E. 168; Indermaur v. Dame, L. R. 1 C. P. 274, and 2 C. P. 311; Marney v. Scott, [1899] 1 Q. B. 986. For the purposes of the case at bar we need not attempt to distinguish between these different duties. See Clark & Lindell's Law of Torts (5th Ed.) 498, 499; Salomon on Torts (3d Ed.) 361, 362; and the note to Indermaur V. Dame, in Bohlen's Cases on Torts, p. 267. [2] The difficult question is whether there was any evidence of negligence on the part of the defendant in allowing the branch to overhang the driveway or in not warning the intestate of the danger that might arise

therefrom. There was no defect in the drive

way itself. It was sufficiently wide and well wrought. There was only a narrow space near the outside edge of the gutter where the branch was near enough to the surface of the ground to reach the top of the wagon driven by the intestate. It is no unusual thing to find trees very near to the edge of a

private driveway and overhanging it as this

one did. The tree was a large one; the overhanging branch was "a big, stout limb," as one of the plaintiff's witnesses described it. Both the tree and the branch were conspicuous objects, not only plain to be seen, but scarcely capable of not being seen by any one using the driveway. The intestate had been using the driveway, with the tree and the branch in the same position, almost daily for some eight months before the happening of the accident, driving immediately under the branch, as the defendant knew. She had a

right to believe that he was fully acquainted with the situation and with the risk of going to or near to the very edge of the gutter at this point. Under these circumstances we are of opinion that as to him at any rate

the issue was whether he was injured by a Where, in an employé's action for injuries, fence falling on him, as claimed by him, or by falling off a ladder resting on a hopper while engaged in the repair of the hopper, and where witnesses for defendant testified to statements by plaintiff that he was injured by falling "from a hopper," it was error to charge that it was defendant's claim that plaintiff said the accident occurred while he was working "on the hopper," that the jury was to consider what this meant, that in common language it would be said that a man was working on a building if doing some work towards its erection or reor inside of it, and to ask whether plaintiff pair, although not actually upon the building meant any more than that he was helping the man who was putting boards on the hopper, since it did not correctly state defendant's evi


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who was a foreigner and as to whose ability to
In an action for injuries to an employé,
understand or speak the English language the
evidence was conflicting, where a stenographer
testified for defendant as to a statement taken
by her from plaintiff shortly after the accident,
evidence as to her compensation was incompe-
tent; it having no tendency to show whether or
not she could or did rightly understand plain-

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. § 1103; Dec. Dig. § 328.*]


In an employé's action for injuries, where defendant had no witnesses who saw the accident, and was compelled to rely on contradicto

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