Wilson v. Smith
Wilson v. Smith
Opinion of the Court
This is an appeal from a decree dismissing a bill in equity after an interlocutory decree sustaining the, demurrer of the defendant Baxter.
In 1917, Baxter owned about an acre of land with a dwelling house thereon in Malden, subject to a mortgage for
On October 15, 1921, the defendants Smith executed a power of attorney to the plaintiff authorizing him to divide the real estate above referred to into house lots, to erect buildings thereon, and to develop it as he, in his judgment, deemed best; and to mortgage, sell and convey the same with full covenants of warranty or otherwise and upon such terms and to such persons as he might deem expedient either in whole or in part, giving him authority to execute and deliver deeds, mortgages, contracts, or other instruments in writing which might be necessary or proper, and with full power to use the proceeds of any sale or mortgage of any part of said property in the payment of taxes, mortgage interest, or indebtedness arising from the. development or the building upon the property. The power, by its terms, was to continue until it should be revoked by an instrument of revocation recorded in the registry of deeds for the county of Middlesex. It appears from the bill that this power was revoked by an instrument made and recorded as therein provided, but the date of such revocation is not stated. The plaintiff’s contention that it could not be revoked because it was a power coupled with an interest is untenable because of the express provision for revocation in the instrument.
The plaintiff is seeking to recover for his losses and services, to have the power of attorney restored, to have the land reconveyed to the Smiths, and to be permitted to continue to construct houses on the land and sell them.
In this case we are dealing only with the demurrer of the defendant Baxter. The prayers relating to him are: that he be ordered to reconvey the premises to the defendants Smith; that he be ordered from time to time to execute all deeds, releases and instruments necessary to enable the plaintiff and the defendants Smith to carry out the development of the premises under the plaintiff’s direction; that he be ordered to refrain from interfering with the plaintiff in development of the premises according to the intent and purpose of the power of attorney; and that the premises be charged with the amount found due the plaintiff for advances, expenditures and services.
The facts upon which the plaintiff seeks equitable relief against the defendant Baxter are: (1) that the plaintiff had agreed to finance the construction of houses on the land belonging to the defendants Smith; (2) that Baxter knew that he was putting up the buildings and consented to it; (3) that Baxter wrongfully interfered with the plaintiff’s vested and contractual rights and with intent to defraud him and deprive him of the lien held by him, induced and
From the foregoing it sufficiently appears that the plaintiff has stated no ground upon which suit can be maintained against the-defendant Baxter. He violated no duty to the plaintiff in persuading the defendants Smith to revoke.the power of attorney and reconvey the land to him. There is no liability of the Smiths stated which could be the foundation of a bill to reach and apply, nor any ground upon which the plaintiff has a right to order Baxter to reconvey.
Interlocutory and final decrees affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.