Wyman v. Fox , 59 Me. 100 ( 1871 )

Appleton, C. J.

The plaintiff being a creditor of Amos Wy-man by virtue of a bond bearing date 22nd July, 1840, commenced a suit thereon July 18, 1860. While this suit was pending, Amos Wyman deceased, and an administrator was appointed, by whom the estate was rendered insolvent. The administrator assumed the defense of the suit, but neglected to suggest the insolvency on record and to pray a stay of execution. The plaintiff obtained judgment, and execution issued thereon, which was satisfied by a levy upon real estate, the title to which was once in Amos Wyman, and which, as the plaintiff alleges, he fraudulently conveyed to his wife who conveyed the same to her brother, the other defendant, Henry L. Fox, in whom the title as of record now remains, to hold in trust for herself.

It was held in Sturgis v. Reed, 2 Greenl. 109, that if an administrator of an estate represented insolvent, assume the defense of an action against his intestate, and neglect to suggest the insolvency on record, and pray a stay of execution, so that execution is issued, the same cannot be set aside and an extent in due form on the real estate of his intestate is valid. This decision was reaffirmed in Frost v. Illsley, 54 Maine, 348; and in Wyman v. Fox, 55 Maine, 523.

The plaintiff having made a levy, to which no exceptions are taken, upon lands once belonging to Amos Wyman, has brought this bill to compel the defendants to release to him their title, which he claims to be in fraud of the. creditors of said Wyman. As the debtor had the legal title to the land levied upon when the debt was contracted, upon which judgment was rendered, execution issued and the levy made, if the conveyance from the debtor to his wife and from her to the other defendant was in fraud of the creditors of the grantee, a .creditor thus defrauded may levy his execution on the land fraudulently, conveyed, and then proceed to perfect his title by bill in equity. Webster v. Clarke, 25 Maine, 313; Webster v. Withey, 25 Maine, 327; Corey v. Greene, 51 Maine, 114.

It is in proof, that, on 13th May, 1856, Amos Wyman conveyed the premises levied upon to his wife, Charlotte H. Wyman, and that they by their joint deed of warranty, on 26th June, 1858, conveyed the same to the defendant Fox, a brother of Mrs. Wy-man.

The plaintiff, at the time of these conveyances, was a creditor of Amos Wyman. The evidence fails to show any valid consideration for the conveyance from him to his wife. It is in proof, from the repeated declarations of the grantor and grantee, that this conveyance was to hinder, delay, and defraud the creditors of the grantor, and that to accomplish this was alike the purpose of the grantor and the grantee. That such was the object is further shown by their conveyance to the defendant Fox, a resident of Massachusetts, who paid nothing for the conveyance, and never occupied, managed," or controlled the estate, but permitted his grantors to occupy the same without rent during their joint lives, and since the- decease of Amos Wyman has permitted his sister to continue the same occupation to the present time. This conveyance, too, was fraudulent.

The decree, therefore, must be, that the defendants release their interest in the land levied upon, except the dower of Mrs. Wyman, her rights as dowress not being affected. The plaintiff cannot take advantage of her conveyance to Fox, nor is she estopped thereby as against him. Robinson v. Bates, 3 Met. 40.

Bill is sustained. The defendants are to release to the plaintiff all their interest in the premises described in the plaintiff ’s bill, except the dower to which Mrs. Wyman is entitled, and the plain tiff to recover costs, and a decree to be entered accordingly.

Kent, BaRROws, Danfortii, and Tapley, JJ., concurred.