Snow v. Paine , 114 Mass. 520 ( 1874 )

Colt, J.

The demandants levied an execution recovered against Paine upon land the record title to which was in his wife by deed from Lancy. This writ of entry is brought to recover possession of the same from the tenant, on the ground that the conveyance was made to her in fraud of her husband’s creditors. When the record title to real estate taken on execution is not in the judgment debtor, the creditor can only establish his title against the tenant, when there is no express or implied trust, by proving that the tenant either participated in the fraudulent purpose of his grantor, or that the deed to him was without good consideration and wholly voluntary. The same rule applies to the fraudulent procurement of a conveyance to a third person, under the statute. When the tenant has paid part of the consideration for the deed and has innocently acquired the legal title, his title cannot be defeated by the levy of an execution against one who with intent to defraud his creditors paid the other part of the consideration, and assented to the conveyance. The equitable interest of the debtor, if any, which arises from his part payment of the purchase money, cannot be reached by proceedings under the statute. Gen. Sts. c. 103, § 1. Clark v. Chamberlain, 13 Allen, 257. Hinckley v. Phelps, 2 Allen, 77. Bancroft v. Curtis, 108 Mass. 47.

The case was tried upon this view of the law, and the rulings were in the main correct. Those asked for by the demandants were properly refused.

1. The disability which prevents husband and wife from contracting with each other does not prevent him from returning to her the money which she had previously placed in his keeping; such a transaction would not be a gift and would certainly be valid if free from any fraudulent intent. The instruction given on this point, if material, was sufficiently favorable to the demandants. Bullard v. Briggs, 7 Pick. 533. Forbush v. Willard, 16 Pick. 42.

2. The refusal to give the second instruction asked, and the ruling that if the tenant had paid any part of the purchase money, however small, in ignorance of her husband’s purpose, his creditors could not attach the same as fraudulently conveyed to her, taken in connection with the other rulings, was in conformity with the law as above stated. It does not appear that upon the question of good faith the jury were not permitted to give full effect to the fact that the amount paid by the tenant was a very small part of the value of the whole estate.

3. The court was asked to rule in substance that the demand-ants were entitled to recover a part of the demanded premises which should have the same proportion to the whole which the amount paid by the judgment debtor bore to the whole purchase money, upon the ground, apparently, that such portion of the estate, being held under an implied trust in favor of the husband, passed under the statute by the levy of the execution to the plaintiffs, however innocent the wife may have been. But the difficulty is that a resulting trust is not created by implication of law in favor of one who pays part of the purchase money of real estate conveyed to another, unless such payment is made for some specific or distinct interest in the estate. All the evidence here shows that whatever was paid by the husband was only a general payment towards the entire purchase. McGrowan v. McGrowan, 14 Gray, 119.

4. Upon the question whether the avails of the $450 note belonged to the wife or to the husband, it is plain that the giving of the note by her, if without fraudulent intent on her part, was a fact proper for the consideration of the jury.

5. The several items of evidence objected to were properly admitted. The knowledge and intent of the witness in the transaction in question was a fact which had a bearing on the issue before the jury, and of which she may properly testify. Thacher v Phinney, 7 Allen, 146. It does not appear that the declarations of one of the parties to the record against his interest were not properly admitted. And evidence of the relations of the husband and wife, with reference to their deposits in the bank, were competent on the question of ownership, and as affecting the knowledge and intent of the parties.

6. But at the request of the tenant the jury were instructed that the conveyance to her would be good as against her husband’s creditors, if, without knowledge of his intention to defraud them, she added to the amount transferred to her from the savings bank, an amount sufficient to make up the first payment of $600. Under the facts disclosed, we are of opinion that this instruction should not have been given without some further qualification, and that it may have misled the jury. It was in dispute whether the amount in the savings bank belonged to the husband or to the wife. The jury may have found that it belonged to him. The few dollars paid by the wife may have been advanced by her to her husband as an accommodation to him, and to make up the amount, and not as a part payment by her of a part of the consideration of the deed. Such a payment would not relieve the transaction from its character as a voluntary conveyance. And yet we fear, under the instructions given, the jury may have understood otherwise. On this ground alone

The exceptions are sustained.