Davis v. Herrick

Shepley, C. J. —The action is trespass for pulling down and carrying'away a barn, commenced by the wife of Joseph D. Davis. She may, by a statute of this State, maintain a suit to protect her own property. A tract of land appears to have been conveyed by Edward Little to Joseph Raynes, a brother of the plaintiff, on May 24, 1831. The plaintiff’s husband, by the permission of Raynes, built the barn on that land. He conveyed it by bill of sale to Raynes, on April 1, 1850, and Raynes [399] conveyed the land, and barn upon it, to the plaintiff on the same day. Her husband became indebted to the defendant afterward, in September, 1851; and he caused a sale of tho barn.to be duly made on an execution issued on a judgment founded upon that debt, and became tho purchaser of it. He offered testimony to prove the conveyance of it to the plaintiff, to have been fraudulent; and the testimony was excluded, because the defendant was a subsequent creditor of the husband, claiming title under him. For the consideration of the question, thus presented, the building may be regarded as conveyed indirectly by the husband to his wife, through the intervention of Raynes, which is the most favorable aspect of the case for the defendant. The second section of the Act of August 2, 1841, c. 27, provides, if it shall appear1, that property was conveyed after marriage by the husband to his wife, “ directly or indirectly, without adequate consideration, so that the creditors of the husband might thereby be defrauded, the same shall be held for the payment of the prior contracted debts of the husband.” This is equivalent to an enactment, that it shall be held only for prior contracted debts. A construction, which would subject it to the payment of other debts, must destroy the effect of the words “prior contracted.” When an Act declares under what circumstances property shall be held for the payment of the debts of former owners, who have conveyed it, that of necessity, excludes all other circumstances. The intention of the framers of the statute, appears to have been, to allow a husband to pay for property conveyed to .his wife, with his own money or property, and to allow his wife to hold it, unless the creditors then existing of the husband, should thereby be defrauded. Any other construction might render all such conveyances ineffectual, if the husband should .afterward contract debts and become insolvent. If such conveyances be made to defraud existing creditors, whose debts have been since paid, the property would not, under the provisions of the statute, while [400] it would by the common, law, be subject to be taken for the payment of debts subsequently contracted. For the Act provides, that if conveyed “ so that the creditors of the husband might thereby be defrauded, the same shall beheld for the payment of the prior contracted debts of the husband and this excludes those subsequently contracted. A motion has been made by the counsel for the plaintiff, that treble damages should be awarded, by virtue of the statute respecting malicious mischief; but the report of the ease presents no facts authorizing it, and it provides, that judgment should be upon the verdict if the testimony was properly excluded. Judgment on the verdict. Howard, Ríce, Hathaway and Cutting, J. J., concurred.