First National Bank of Lewiston v. Dwelley , 1881 Me. LEXIS 68 ( 1881 )

Barrows, J.

Notwithstanding the sinister construction which the demandant’s counsel in their ingenious argument put upon some expressions used by Darwin Dwelley and the defendant in their testimony, we think it plainly appears that the former had no legal or equitable interest in the property in Brunswick village after he conveyed it to his wife, some years before ho began to indorse the notes of Dwelley & Mower to the Bank, nor any control over the same, except through the indulgence conceded by conjugal affection to the whim of his old age in making him the conduit through which the title of the Lunt farm for which the village property was exchanged should be passed to the defendant.

There is no controversy here as to the law. Plaintiffs’ counsel recognize the doctrine laid down in French v. Holmes, 67 Maine, 186, but make a strenuous effort to show that there was fraud in fact here, claiming that the antecedent conveyance from Darwin Dwelley to his wife was either causa mortis, or, if it were to be regarded as a gift inter vivos, that it was revoked by mutual consent, when the property was reconveyed to the husband for the purpose of being conveyed to the Lunts in exchange for the farm deeded on the same day and as part of the same transaction to the defendant, and upon which the plaintiffs levied as being the property of the husband.

Now we think neither of these claims is sustained by the evidence. The first is founded upon Darwin Dwelley’s answer that at the time of the conveyance to his wife he " was in a slim state of health,” and the next succeeding question and answer, viz: "Whether or not it was your purpose that she should have the whole of it in case of your death at that time ” ? "Yes, to do as she pleased with it.”

There is nothing singular in the witness assenting to the purpose attributed to him by counsel in the question, for he had already testified touching the consideration of the deed to his wife — "I considered she had worked as hard through life as 1 had, and was as much deserving to be looked out for as myself, and I gave it to her; ” but it does not go far to convert an absolute completed conveyance into one conditioned upon his speedy dissolution. So far as appears, he thought, whether he lived or died, his "wife deserved to be looked out for as much as himself, ” and hence made the conveyance which gave her the right "to do as she pleased with it” in either case.

Nor, except to creditors desirous of securing a desperate debt, does the testimony indicate a revocation of the gift to the wife by mutual consent. That the aged husband and wife should have the same wishes with regard to the disposition of the property in such a way as would finally transfer it to their son, the defendant upon whom they relied for the support of both, proves nothing. The whole arrangement for the exchange with the Lunts to this end was complete before the transfer of either parcel was made, and all the conveyances of May 17, 1877 were parts of that one transaction, which was in substance the conveyance from the Lunts to the defendant of tbe farm here in controversy in exchange for property which at that time belonged not to the defendant’s father but to bis mother. There was nothing there over which Darwin Dwelley at that time had any dominion or control. That he should appear as a nominal party through whom the conveyances were made does not indicate any fraudulent intent as to his creditors, but rather the reverse.

It suffices here to say that years before bis indebtment to tbe plaintiff accrued, be had parted in good faith with all property in the estate, for which this farm was received in exchange ; and the only title to either parcel that he lias since held was in trust-for tbe specific purpose of making the conveyances in question.

Judgment for defendant.

Appleton, C. J., Walton, Virgin, Libbey and Symonds, JJ., concurred.