Bancroft v. Curtis

Gray, J.

This action cannot be supported upon either of the grounds upon which the demandant relies.

1. If the wife had paid no part of the consideration of the original conveyance to the husband and had had no legal or equitable right in the land, and the subsequent conveyance by him through a third person to her had been made by him, being indebted and having no other property, and without any valuable consideration, it would doubtless have been void as against his existing creditors, and the jury should have been so instructed. Williams v. Thompson, 13 Pick. 298. Peirce v. Thompson, 17 Pick. 391. Gunn v. Butler, 18 Pick. 248. But the report shows that all that part of the consideration of the original conveyance which was ever paid in money was paid by the wife, and that she could not read or write and at the time supposed that the conveyance was taken in her name. Under the circumstances of this case, if the subsequent conveyance from the husband to the wife was made for the purpose of correcting the mistake, and of transferring to her the fee of the land to which, by reason of such payment by her of the consideration of the original conveyance, she was justly and equitably entitled, whether a trust could or could not have been enforced in tier favor, the conveyance to her was for a sufficient consideration to make it valid, even as against existing creditors of the husband, unless it was made with an actual purpose to defraud them ; and such fraud has been nega tived by the finding of the jury, which distinguishes the cast from that of Smith v. Lane, 3 Pick. 206. Bullard v. Briggs 7 Pick. 533. Forbush v. Willard, 16 Pick. 42.

2. The provision of the St. of 1862, o. 198, § 1, that any property employed by a married woman in doing business on her separate account shall not be allowed to be claimed by her as against the creditors of her husband, but may be taken on attachment or execution against him, unless she files a certificate in the office of the town or city clerk, stating the name of her husband and the place and nature of the business, manifestly applies to her personal property only, which at common law would have become her husband’s absolutely, and of dealings with which such clerk’s office is, according to our statutes, the appropriate place of record and not to her real estate, in which her husband never would have taken more than a life interest, and all instruments affecting which should properly be recorded in the registry of deeds.

Judgment for the tenant.