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Desmond v. Moffie

United States Court of Appeals, First Circuit
Apr 13, 1967
375 F.2d 742 (1st Cir. 1967)

Summary

finding fraudulent conveyance claim under Massachusetts Uniform Fraudulent Conveyance Act to be a contract rather than tort action for purposes of applying appropriate statute of limitations

Summary of this case from Sheehan v. Saoud

Opinion

No. 6839.

April 13, 1967.

George R. Desmond, Framingham, Mass., for appellant.

Leonard M. Salter, Boston, Mass., for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.


In this action plaintiff trustee in bankruptcy seeks to set aside as fraudulent a conveyance of certain Massachusetts real estate made by the bankrupt to his wife in January 1962. The suit, which was commenced on August 22, 1966, is based on Section 70(e) of the Bankruptcy Act. Under this section a trustee in bankruptcy stands in the shoes of a creditor who has a provable claim and may set aside any transfer of property by the bankrupt which is fraudulent or voidable under applicable state law.

The petition in bankruptcy was filed on June 6, 1966 and plaintiff was appointed trustee on June 29, 1966.

Plaintiff alleged facts which would render the conveyance in question voidable under the Massachusetts Uniform Fraudulent Conveyance Law. Mass.Gen. Laws ch. 109A (1932). Defendant countered with a motion for summary judgment on the ground that this is an action sounding in tort and therefore is barred by the two year statute of limitations applicable to suits on tort claims. Mass. Ann. Laws ch. 260, § 2A (1952). The district court granted defendant's motion.

On appeal, plaintiff contends that his suit is not barred because it is founded on contract and hence is governed by the six year limitation applicable to contract actions. Mass.Gen. Laws ch. 260, § 2 (1932). This is the only issue raised by this appeal.

In Massachusetts the statutes of limitation applicable to law actions based on contract and tort are also applicable to suits in equity. Kagan v. Levenson, 334 Mass. 100, 134 N.E.2d 415, 62 A.L.R.2d 704 (1956). In deciding which statute applies in a given case, it is necessary to determine the essential nature of plaintiff's claim. Kagan v. Levenson, supra. In Blumenthal v. Blumenthal, 303 Mass. 275, 21 N.E.2d 244 (1939), the court held that the essential basis of the statutory proceeding to set aside a fraudulent conveyance is an indebtedness that could ordinarily be enforced in an action of contract, and that the nature of the claim is in no way changed by the form of procedure. Accord, State of Rio De Janeiro v. E.H. Rollins Sons, 299 N.Y. 363, 87 N.E.2d 299, 14 A.L.R.2d 594 (1949); see Salvucci v. Sheehan, 349 Mass. 659, 212 N.E.2d 243 (1965); cf. Viera v. Menino, 322 Mass. 165, 76 N.E.2d 177, 179 (1947). Accordingly, since this claim is based on contract rather than tort, it follows that the two year statute of limitations is not applicable here and plaintiff's suit is not barred.

Judgment will be entered vacating the judgment of the district court and remanding the case for further proceedings not inconsistent with this opinion.


Summaries of

Desmond v. Moffie

United States Court of Appeals, First Circuit
Apr 13, 1967
375 F.2d 742 (1st Cir. 1967)

finding fraudulent conveyance claim under Massachusetts Uniform Fraudulent Conveyance Act to be a contract rather than tort action for purposes of applying appropriate statute of limitations

Summary of this case from Sheehan v. Saoud

finding fraudulent conveyance claim under Massachusetts Uniform Fraudulent Conveyance Act not to be a tort for purposes of choosing appropriate statute of limitations

Summary of this case from F.D.I.C. v. S. Prawer Co.

finding a fraudulent conveyance claim under Massachusetts Uniform Fraudulent Conveyance Law not to be a tort for purposes of choosing appropriate statute of limitations

Summary of this case from Diamond Chapter 7 v. Friedman (In re Century City Doctors Hospital, LLC)

noting that trustee sought to invalidate conveyance by bringing adversary proceeding solely against spouse of debtor

Summary of this case from Comjean v. Cruickshank

applying district court finding that essential basis of statutory proceeding to set aside a fraudulent conveyance is indebtedness ordinarily enforced in an action of contract

Summary of this case from F.D.I.C. v. Zibolis

applying contract, rather than tort, period of limitation in an action by a bankruptcy trustee to set aside a fraudulent conveyance of real estate

Summary of this case from Wilson v. Hammer Holdings, Inc.

In Desmond v. Moffie, 375 F.2d 742 (1st Cir.1967), the United States Court of Appeals for the First Circuit, while noting that the Massachusetts statutes of limitationapply to suits in equity, considered whether an action to avoid a fraudulent conveyance of real estate sounded in tort as the defendant contended and, therefore, was time barred by the Mass. Gen. Laws ch. 260, § 2A.

Summary of this case from Riley v. Countrywide Home Loans, Inc. (In re Duplication Mgmt., Inc.)

In Desmond v. Moffie, 375 F.2d 742 (1st Cir. 1967), a trustee in bankruptcy sought to employ the rights of a contract claimant to set aside an allegedly fraudulent transfer.

Summary of this case from In re Stevens Linen Associates, Inc.
Case details for

Desmond v. Moffie

Case Details

Full title:George R. DESMOND, Trustee, Plaintiff, Appellant, v. Marilyn J. MOFFIE…

Court:United States Court of Appeals, First Circuit

Date published: Apr 13, 1967

Citations

375 F.2d 742 (1st Cir. 1967)

Citing Cases

Riley v. Countrywide Home Loans, Inc. (In re Duplication Mgmt., Inc.)

See Demoulas v. Demoulas, 428 Mass. 555, 580, 703 N.E.2d 1149 (1998). In Desmond v. Moffie, 375 F.2d 742 (1st…

In re Lowenstein

They make several points in their Memorandum. Citing, inter alia, Desmond v. Moffie, 375 F.2d 742, 743 …