Warner v. Moran , 60 Me. 227 ( 1872 )

Tapley, J.

R. S., c. 113, § 51, provides that, ‘ Whoever knowingly aids or assists a debtor or prisoner in a fraudulent transfer, or concealment of his property, to secure it from creditors, and prevent its attachment or seizure on execution, shall be liable to any creditor suing therefor in an action on the case, in double the amount of property so fraudulently transferred or concealed,- not exceeding double the amount of such creditor’s demand.’

This action is founded upon this section. It appears by the report in this case, that Patrick Moran, the husband of the defendant, being indebted to the said plaintiffs, on the 18th of May, 1864, made a purchase of certain real estate, and paid therefor the sum of $1,000, and at the instance and request of this defendant, and for the purpose of hindering and delaying these creditors, caused the deed to be made to her.

The question presented is, can the action be maintained upon this state of facts ?

It is contended that the transaction having taken place in the presence of the husband, she is conclusively presumed to be under his coercion in the act.

This position, we think, cannot be maintained. In Marshall v. Oakes, 51 Maine, 308, it was held that the presumption is prima facie,' that the wife acted under coercion, if the husband wasactually present, and that it applied as well in civil suits as in criminal cases; and that such presumption may be rebutted by evidence, and the wife shown to be the instigator or active party.

We perceive no reason .for doubting that the principle was correctly stated in that case. The reasoning, and authorities cited in that case, we refer to upon this point.

Section 1, chapter 61, provides, among other things, that ‘ when payment was paid for property conveyed to the wife from the property of her husband, or it was conveyed by him to her without a valuable consideration made therefor, it may be taken as the property of her husband to pay his debts contracted before such purchase.’

Under this provision of statute, it is contended that ‘ the remedy of the creditor is by levy upon the estate as the property of the husband.’

It has been held upon consideration in this State, that where the title never vested in the husband, a levy was not effectual, and that a deed given to the wife by a third party upon payment made with the husband’s property, did not so vest the estate in the husband that it could be taken by levy, but the creditor must proceed by equity.

It is sufficient at this time to refer to the recent case of Webster v. Folsom, 58 Maine, 230, and the cases there cited.

The wife having, since the conveyance and before the action was commenced, been divorced from the husband, and the evidence showing that she was the instigator and active party, and not in fact under the coercion of the husband in the act, we think the action is maintainable. Case to stand for trial.

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