Whitmore v. Woodward , 28 Me. 392 ( 1848 )

The opinion of the Court was drawn up by

Wells J.

— Several objections are made to the plaintiff’s bill. ,

1. It is denied, that the debtor, Allen Crowell, had any attachable interest in the land, because the whole amount, due on the contract, had been paid to R. H. Gardiner, before the attachment was made.

The Rev. Stat. c. 114, $ 73, provide that rights of redemption and the “ right, title and interest which any person has, by virtue of a contract, to a deed of conveyance of real estate, on specified conditions, may be attached on mesne process, and the same lien thereon shall be thereby created by such attachment, as if they were tangible property.”

The right becomes perfected, by the payment of the money, mentioned in the contract, and may be enforced by a bill in equity. Rev. Stat. c. 96, <§> 10. The more the debtor has paid, the more valuable is his interest, and the greater reason why creditors should have the benefit of it, in satisfaction of their debts.

The statute does not limit the right to be attached, to a time, before the conditions have been performed. It describes it, and the mode, in which it accrues, and consequently authorizes its attachment, during its existence, and at any time, after its inception, and before its consummation, by a conveyance of the title. Whittier v. Vaughan, 27 Maine R. 301.

2. It is contended, that the right of the debtor had been forfeited, by. a failure to comply with the terms of the contract.

But the bill alleges, that the time had been extended, by the reception of payments from Crowell. Payments made, after the time specified in the contract, would have that operation. Gardiner vras at liberty to extend the time, and by doing it, he gave to Crowell the same right, which he would have had, by a strict compliance with the conditions. The waiver of performance, at the time, specified in the contract, attaches to it, and becomes a part of it, and the creditor takes it, by the provisions of the statute, as it belonged to the debtor.

3. It is objected, that the officer, in making the attachment, in advertising and in giving the deed, did not properly describe the debtor’s right.

The bill alleges, that he did “ attach all the right, title and interest of the said Crowell, in and to the said real estate described in the said indenture.” The same language is used in relation to seizing the right, on execution, and advertising it for sale. It is also stated, that the right, &c. by virtue of said indenture, in and to the real estate therein described, was sold at public auction, and that the officer “ has executed a good and sufficient deed of the premises,” &c.

Between the original parties to the contract, no lien attaches 1o the land. But in relation to a creditor, the statute declares it to be an attachable interest, as if it “ wore tangible property.” It is not the contract, which is attachable, but the right under it, and in the language of the statute, a “ lien” is created on the land, by the attachment.

It is not such an interest, as would give the purchaser a seizin in the land, so that he could maintain a writ of entry, as was decided in Shaw v. Wise, 1 Fairf. 113. But the statute makes it an attachable interest in the land.

In the case of Stevens v. Legrow, 19 Maine R. 95, it is stated, that there was attached “ all the right, title, interest, estate, claims and demands of every name and nature,” &c. It was considered by the Court, that these terms were broad enough to effect an attachment of the debtor’s right, under the contract. But as the officer, in that case, advertised and sold the right, describing it as an equity of redemption, the sale was considered inoperative.

In the present case, it is understood, from the allegations in the bill, that the officer, in his proceedings, refers to the indenture; by an examination of which, the exact nature of the debtor’s interest could be ascertained.

The allegations in the bill are sufficiently specific, to warrant the conclusion, upon the present exhibition of the facts, that there has been, in the attachment, advertisements, sale and deed, a compliance with the statute.

4. The defendant holds the land by a conveyance from Gardiner, and it is contended, that he being the party contracting with Crowell, the plaintiff should have brought • his bill against him. The statute doés not prohibit the. owner of real estate, who has entered into a contract, to convey it, upon conditions, from alienating it. But his liability to damages, for a breach of his contract with the original party, would not cease, upon such an alienation.

When the defendant took "his deed, the attachment was made, and by the record, he had constructive notice of its existence. He is charged with taking it, for the purpose of aiding Crowell, to defraud his creditors. But Gardiner not being a party to the fraud, and having power to convey, the title passed from him, by his deed to the defendant. Between him and Gardiner, it is vested in the defendant, notwithstanding he took it, with the design to defraud the creditors of Crowell.

Gardiner has not the title, and the plaintiff can derive no benefit from a conveyance, except from one having the title.

Unless creditors can sustain a bill against the assignees of the party contracting to convey, their rights would be defeated, in every case, where such conveyance should be made.

' The Legislature has given to creditors the right to take this species of property, and by section 50 of chapter 117, the purchaser “ shall have the same remedy by bill in equity to compel a conveyance of it, as mortgagers have to compel mortgagees-to convey to them, on performance of, or offer to perform the condition of a mortgage.

By chap. 125, sect. 16 and 17, Rev. Stat., the remedy of mortgagers extends, not only to mortgagees, but to those claiming under them.

But the statute, in giving the remedy by bill in equity, does not enact against whom it shall be brought; it does not state the persons who shall be made parties to it.

The right, existing as a lien on the land, whoever purchases it, with a knowledge of the right, must take it cum onere, and must respond to the claim, in the broadest extent, to which a bill in equity can reach.

The creation of a “ lien,” by the attachment, must have been intended, to preserve the right of the creditor from a conveyance by the owner of the fee to the debtor, or any other person.

Although this point was not decided in Aiken v. Medex, 15 Maine R. 157, the opinion there expressed upon it, adds strength to the present conclusion.

5. Several years before Lincoln Perry’s debt accrued, CrowelE assigned the contract, made with Gardiner, to Michael J. Woodward, the defendant’s son. If this assignment had been bona fide, it would defeat the plaintiff’s claim, because Crow-ell could have had no interest in it, after the assignment of hia entire right under the contract; there would be nothing remaining, for a creditor, afterwards to attach.

Bat it is alleged in the bill, that this assignment was made by Crowell, to defraud his creditors, and that he afterwards made the payments on the contract, in the same manner as if no such assignment had been made.

It is contended, that Perry, not having been a creditor, when the assignment of the contract was made, cannot impeach it as fraudulent.

The law, existing at the time, when the assignment was-made, was similar, in relation to this species of property, to. the present one, and made it available to creditors. Debtors then could not make a conveyance of it, valid against creditors, if done to defraud them.

The stat. 13 Eliz. c. 5, is not confined in its operation, to* creditors, existing at the time of the commission of the fraud, but embraces those, who subsequently become such. It is not necessary to prove, that the fraud was meditated against those who might become creditors, at a subsequent period.

If the transaction is actually fraudulent against any creditor, any and all creditors may impeach and resist it, and are entitled to the aid of the law, in appropriating the property, fraudulently conveyed, to the payment of their debts. The uniform construction of that statute includes subsequent, as well as existing creditors. Anderson v. Roberts, per Spencer C. J., 18 Johns. R. 513 ; Clapp v. Leatherbee, 18 Pick. 131 ; Parkman v. Welch, 19 Pick. 231; Clark v. French, 23 Maine R. 221.

6. The plaintiff is willing to consider the defendant, as holding the premises in trust, and to allow him such sum, as his son, from whom he is alleged to claim as heir the assignment from Crowell, paid to Crowell, or any sum, which the defendant, himself, has paid, to acquire the estate.

What would be the effect of the transaction, if the son took the assignment from Crowell, as collateral security, for money loaned, Crowell retaining a valuable interest in the contract, it is, at present, unnecessary to determine.

If the defendant is willing to admit, that he holds in trust, and to,convey to the plaintiff, upon receiving such sum, as is justly due, no objection can arise to such an adjustment.

The plaintiff succeeds- only to the right of the debtor, under the contract with Gardiner, and having purchased that right alone, he must be confined to it. He can hold nothing more than what he has purchased. The creditor might have other modes of obtaining his debt; but it does not appear, that he has asssigned his debt to the plaintiff/ or that the latter has any other right, than that, purchased by him, at public auction. Demurrer overruled.