Livermore v. Boutelle , 77 Mass. 217 ( 1858 )

Thomas, J.

1. The first question presented in this cause is whether the plaintiff is within the protection of the St. of 13 Eliz. c. 5, so that the conveyance by her husband, alleged to be fraudulent, is void as against her. This statute was for “ the avoiding and abolishing of feigned, covinous and fraudulent feoffments, gifts, grants, alienations, conveyances, bonds, suits, judgments and executions, devised and contrived of malice, fraud, covin, collusion or guile, to the end, purpose and intent to delay, hinder or defraud creditors and others of their just and lawful actions, suits, debts, accounts, damages, penalties, forfeitures, heriots, mortuaries and reliefs.” If the plaintiff was not, at the time of the fraudulent conveyance, strictly a creditor, yet the cause of divorce existing before the conveyance, and the claim for alimony being incident to or consequent upon such divorce, she was of the “ others ” whose just and lawful actions, suits, &c. would be delayed and hindered or defeated by such conveyance.

But if this point were doubtful, the plaintiff became a creditor of Charles Livermore by the recovery of a judgment against him, and it is well settled law that a conveyance, fraudulent under St. 13 Eliz. c. 5, is void and of no effect against subsequent as well as against existing creditors. Parkman v. Welch, 19 Pick. 231, & cases cited.

2. The second question raised by the report is, whether the execution of the plaintiff could be levied by a sale of the equity of redemption of the estate fraudulently conveyed, or whether a levy by setting off the land was indispensable. Under the Rev. Sts. c. 73, the election of modes of levy is open. This election is not, we think, impaired by the St. of 1855, c. 453. This statute is, it seems to us, but a modification, as to the return of the officer, of the St. of 1844, c. 107. That statute was enacted to reach a class of cases not within the scope of previous statutes, where real estate, or any right or interest in real estate, has been in fact purchased by a debtor or with his money, and the title either retained by the vendor or conveyed to a third person for the fraudulent purpose of securing it from attachment by the creditors of the purchaser. In the class of cases provided for by that statute, the legal title was never in the debtor, and no levy could be made upon the land by his creditor. Howe v. Bishop, 3 Met. 26. It was probably the decision in that case which led to the legislation of 1844. The remedy by the St. of 1844, c. 107, was new, and this court held, in Foster v. Durant, 2 Gray, 540, must be strictly followed. The cases covered by previous legislation were those where, the title being in the debtor, he sought to alienate the estate for the purpose of defeating creditors and others having just and lawful claims, not where, as against such creditor and others, the conveyance was held to be void and of no effect, and the estate to remain as if the conveyance had not been made.

. 3. It is said the execution was not properly levied by a sale of the premises, because the estate conveyed to the tenant was subject to a homestead. St. 1857, c. 298. Without deciding whether a homestead was acquired (though of this no question is made), or whether it was continued in the husband or wife, it is sufficient for this case to say that it does not appear, nor is it claimed, that the tenant in this action or Charles Livermore made any claim that the estate was exempted under the St. of 1857, c. 298, § 15, and that where no such claim intervenes, the officer may well make the sale.

4. Tenney claims his betterments, not on the ground that the premises had been actually held for six years, for such was not the fact, but on the ground that he held them under a title which he had reason to believe good. Rev. Sts. c. 101, §§ 19, 20. But the claim was not made until after verdict, and is clearly too late. Rev. Sts. c. 101, §§ 18-30. The court might possibly, in the exercise of its discretion, and to effect the ends of justice, grant a new trial in order to allow the claim to be made. But upon looking at the report with this view we do not think the ends of justice would be promoted by so doing. Cutler v. Rice, 14 Pick. 494. Judd v. Gibbs, 8 Gray, 435. Harris v. Marblehead, 10 Gray, 40.

Judgment for the demandant-