Gray v. Chase , 57 Me. 558 ( 1870 )

Tap ley, J.

The demurrer admits that the husband purchased and paid for the land levied upon, and procured the conveyance of it to be made to his wife. In such cases the property may be taken for the existing debts of the husband, as if it was his own property. R. S., c. 61, § 1.

Under the decisions of this court, construing this statute, it has been held, that when the husband never had the legal title, it must be transferred to the creditor, by means of a process in equity.

■ This property being subject to the debts of the husband, may be taken by this process, and if the husband has any other property than this, the plaintiff may take that or this at his own election. The fact that he has other property, which may be reached by another process of the court, does not impose upon him the legal duty to pursue that course and take that property, in preference to this. The defendant cannot, by means of such conveyances, elect which property shall be first applied in the payment of his honest debts.

The plaintiff in this case has done all he could do to obtain a title to this land, in part satisfaction of his claim. He can get a title to it in no other way than that now pursued. The levy shows he has exhausted all other means to obtain it. The statute law gives him the right to take it. It is the same authority which confers the right upon him to take other property of the husband by levy. It is, strictly speaking, pursuing a remedy at law, finally perfected and executed through the instrumentality of a decree, obtained by an application to the court, sitting as- a court of equity

The legislature say you may take this land, as if it was the husband’s. They do not say you may take it if you can find nothing else, but the right to take it for such debts is as unlimited in this particular, as the right to take any other property of the husband by levy.

The legislature having given the right, without specifically pointing out the mode, the court, after certain preliminary proceedings, provide the mode and accomplish the end, by a decree requiring the party holding the legal title to make a conveyance.

Demurrer overruled.

Appleton, C. J.; Cutting, Kent, Dickerson, and Barrows, JJ., concurred.