Dietz v. Atwood ( 1886 )

Wilkin, J.

As against Wilhelmina Dietz, there is manifest error in this decree appearing on its- face. It finds the conveyance to her by her husband valid as against his creditors (the premises being a homestead worth less than $1,000) and yet in effect sets it aside as to a part of the lot conveyed. The most that could be claimed on the facts alleged and proved in this case would be that the erection of the new house on the wife’s land should be treated as a gift to her, to the extent that the value of the premises have been enhanced by the improvement, not exceeding the amount of money so invested. The decree, however, seeks to take not only the enhanced value, but all of the property in excess of one thousand dollars in value. The court by this decree does not find the value of the improvement, nor the extent to which the premises have been increased in value, but allows commissioners, appointed by the master in chancery to determine how much of the property, or its value, shall be taken. This is not a proceeding to subject a homestead to sale, and there is no authority of law for vesting such power in commissioners. The question of homestead is only material in the case in determining whether or not the conveyance of March 17, 1868, was fraudulent or not.

That question being settled in favor of appellant, the legal title was vested in the wife, and any increase in the value of the property arising from causes other than the expenditure of money thereon by the husband was hers as absolutely as though she was a stranger to the grantor.

The question then arises as to the rights of the parties, regardless of any question of homestead. The law seems to be that “if a debtor use his personal property upon the real estate of another, with the knowledge and consent of the owner, so that it becomes a part of such realty, for the purpose of defrauding his creditors, and prevent them from obtaining satisfaction of their demands, they may still follow the property into the hands of the owner of the premises thus benefited, and fasten their claims upon such premises to the extent of the debtor’s property so appropriated.” Bump on Fraudulent Conveyance, 239, and cases cited in note one. Especially see Lyman v. McGregor, 38 Allen, 182.

If, therefore,the court below, on a second hearing, should find that the husband invested his money in the improvement of the wife’s property (not reasonably necessary to keep it habitable, and in repair as a home for the family), and that he made such investment with the intent to hinder and delay his creditors, and with . the knowledge and consent of his wife, and without any consideration from her, then the appellee would be entitled to a decree against the premises for the satisfaction of his debt to the extent that the investment of the husband’s money has increased the value of such premises if anything, but not exceeding the amount of money so invested.

The finding of those facts are for the court, by reference to the master or otherwise, so as to fix the rights of the parties by its decree.

For the errors indicated, the decree will be reversed and the cause remanded.

¡Reversed and remanded.