Hill v. Hill , 196 Mass. 509 ( 1907 )

Braley, J.

In the original decree of divorce which had become absolute, no order for the custody and maintenance of Agnes G. Hill, a minor, and the only child born of the marriage, having been made, the former wife, and libellee, brought a petition in which George H. Hill, her former husband, was made respondent, praying for the custody of their daughter, with an order for her maintenance, and that a special precept might issue directing the attachment of his property to secure the payment of any sum which might be awarded. By a decree upon this petition the child was placed in the custody of her guardian, with an order for an annual fixed sum for her support, payable quarterly, and, the prayer for process having been granted, an attachment was made of his real estate. The payments not having been made, a second petition was brought asking that a sale of the attached property might be ordered to satisfy the arrears. This petition also was granted, and under the decree a sale took place with the payment of the net proceeds into court to await its further order. A period of some four months elapsed when the third and final petition was brought, which after reciting the previous petitions and decrees, alleged that no payments having been made, a large amount had accrued which should be satisfied out of the fund. Before a decree was entered on the .last petition, Sarah A. Hill, the mother of the respondent, apparently was allowed to intervene, and having been made a party claimed the proceeds under the terms of a paroi trust concerning the land, alleged to have existed between her and the respondent at the date of the attachment.

While the allegations of this petition are admitted by the demurrer, no evidence is recited upon which the decree on the third petition was based. But it is to be inferred from the further recitals, that, after sustaining the demurrer, the court found all the substantial averments proved. By the terms of the decree Ella L. .Hill was given costs, while the guardian was awarded the arrears due, with a further direction that the balance remaining of the fund after deducting these amounts should be retained to await the further order of the court. If the attachment had not been made, upon his repudiation of the trust which was unenforceable specifically by reason of R. L, c. 74, § 1, cl. 4, the appellant could have recovered from her son the value of the estate conveyed. O'Grady v. O'Grady, 162 Mass. 290, 293. Cromwell v. Norton, 193 Mass. 291. If the law were held to be otherwise the statute of frauds would become the effective shield of fraud. Twomey v. Crowley, 137 Mass. 184, 185. But Ella L. Hill having had no notice of the trust when the property was attached, under the provisions of R. L. c. 147, § 3, she is to be deemed a purchaser for value unless the argument of the intervener prevails, that she cannot be considered a creditor within the meaning of the statute. By R. L. c. 152, §§ 29 and 31, the Superior Court is given authority to issue process of attachment and execution in proceedings for divorce, and may enforce its decrees for an allowance for alimony, or for maintenance of the minor children of the parties “ in the same manner as it may enforce decrees in equity.” When an attachment is ordered it not only is to be made in the same manner as in actions at law, but the laws governing such attachments are expressly declared to be applicable. R. L. c. 152, §§ 11,12. The legislative and judicial tendency has been uniform, to assimilate the forms of process, whether intermediate or final, whereby the remedial functions of our courts of general jurisdiction are exercised. R. L. c. 152, §§ 10, 11, 12; c. 153, §§ 33, 35; c. 159, §§ 8, 9; c. 162, § 14; c. 167, § 80. St. 1907, c. 453. Chase v. Chase, 105 Mass. 385, 388. Slade v. Slade, 106 Mass. 499. Burrows v. Purple, 107 Mass. 428. McCann v. Randall, 147 Mass. 81. Downs v. Flanders, 150 Mass. 92. Place v. Washburn, 163 Mass. 530. Light v. Jacobs, 183 Mass. 206. McCarthy v. Street Commissioners, 188 Mass. 338, 340. In the commercial and ordinary sense the designation of “ creditor,” means one to whom a debt is due from another person, but in a more comprehensive sense, and as used in our statutes governing procedure and relief, the term includes those who have acquired a lien, either by a legal or equitable attachment, or by seizure and levy on execution. Sewall v. Sewall, 130 Mass. 201. Bailey v. Bailey, 166 Mass. 226. Purdon v. Blinn, 192 Mass. 387, 389. Snyder v. Smith, 185 Mass. 58, 61, and eases cited. Gay v. Ray, 195 Mass. 8. While in Leyland v. Leyland, 186 Mass. 420, the question whether a decree of divorce, with an order and execution for alimony, where no attachment had been made nor execution levied, constituted the divorced wife a creditor of her former husband although discussed, was not decided. Yet in Purdon v. Blinn, 192 Mass. 387, it was held that a decree for alimony in gross was a provable debt against an absentee within the meaning of R. L. c. 144, § 9, permitting his property to be marshalled for the benefit of creditors. In harmony with this general doctrine, if an attachment of the husband’s property previously has been granted, a decree obtained in divorce proceedings by the wife, either for costs or alimony or for the support of minor children committed to her care or to the custody of a stranger, places her in the position of an attaching creditor who is a purchaser for value as of the date of the attachment. R. L. c. 152, §§ 10, 25. Burrows v. Purple, ubi supra. R. L. c. 147, § 3. Connihan v. Thompson, 111 Mass. 270, 271. Woodward v. Sartwell, 129 Mass. 210. Colburn v. Jewell, 130 Mass. 182. Attorney General v. Massachusetts Benefit Association, 173 Mass. 378. The original decree being silent as to the custody and maintenance of Agnes G. Hill, it was open to the former wife to ask for both, and upon her petition the court was clothed with authority to issue process, and to proceed to a decree or decrees, as upon a libel for divorce filed by her. R. L. c. 152, §§ 25, 29. Upon the sale on execution, although the land was converted into money, by force of the attachment in equity the. lien attached to the proceeds and had priority over any pecuniary claim of Sarah A. Hill. Wiggin v. Heywood, 118 Mass. 514. Knowles v. Sullivan, 182 Mass. 318. See Worcester v. Boston, 179 Mass. 41, 50. But, if the amount, which had accrued for the support of the daughter with the costs' of suit was properly allowed, the intervener further "contends that the lien then was dissolved, and that the balance of the fund should have been paid to her. The object of the attachment was to secure the payment of any allowance decreed to the daughter, or to the former wife, and the court retained jurisdiction upon the petition of either party to the divorce to revise, alter or enforce its original decree, or upon her separate petition thereafter to decree alimony, and an allowance for the maintenance of their child. R. L. c. 152, §§ 25, 30, 32. Southworth v. Treadwell, 168 Mass. 511. See Brigham v. Brigham, 147 Mass. 159, 160. After a failure by the former husband to comply with the original or later decrees, the correlative right remained, to enforce payment by the levy of successive executions upon the property attached until it had been entirely exhausted. Sewall v. Sewall, 130 Mass. 201, 204. Downs v. Flanders, 150 Mass. 92. At the time the intervening petition was filed, these various statutory rights had become vested in the former wife as incidental to the divorce proceedings, and no excess of jurisdiction having been shown the demurrer was rightly sustained and the intervening petition rightly denied.

We have decided the case as presented by the parties, who have made no reference to the anomalous character of the participation of a stranger in the principal suit. It is, however, a matter of serious consideration whether either a wife or children who may be in necessitous circumstances should have their primary right to prompt relief postponed to enable an intervener, who has an ample remedy by an independent suit, to litigate an alleged title to property which has been lawfully sequestrated for their benefit. Sewall v. Sewall, ubi supra. Downs v. Flanders, ubi supra. Upon this question we express no opinion. See Tuck v. Manning, 150 Mass. 211, and Williston Seminary v. Easthampton Spinning Co. 186 Mass. 484. Compare Adamian v. Hassanoff, 189 Mass. 194, 196.

Decree affirmed.