Wyman v. Richardson

Appleton, C. J. The case comes before us upon exceptions to the refusals of the justice presiding to give certain requested instructions. A fraudulent conveyance is no transfer of the title as against creditors. The demandant, therefore by his levy, acquired a legal title to the estate of Amos Wyman upon which he had levied. Wyman v. Fox, 55 Maine, 523. The bill in equity by Wyman against Eox and another was for the purpose of removing any possible cloud resting upon the title thus acquired. Wyman v. Fox, 59 Maine, 100. By R. S., c. 103, § 4. “The widow shall be entitled to receive one undivided net third part of the rents and profits of the estate of which her husband died seized, until her dower is assigned either by the heirs, the judge of probate or judgment of court.” There is no evidence that the husband died seized of the premises described in the demandant’s writ. On the contrary he had long previously conveyed the premises by a deed valid as against him, though voidable as to his creditors. The tenant therefore is not entitled to receive one net third of the rents and profits, — and though entitled to dower she cannot claim to occupy any part of the estate until it has been assigned. Bolster v. Cushman, 34 Maine, 428. The tenant by the plea of nul disseizin admits that she is in possession and claims a freehold in the demanded premises. Colburn v. Grover, 44 Maine, 47. There is no disclaimer or plea of non-tenure, nor does the tenant claim title under or as the tenant of any one who has a better title. The demandant did not acquire his title by virtue of the deed of release of Fox to him of September 13, 1871. The object and the effect of that deed was to remove the cloud upon the title of the demandant, existing only in consequence of fraudulent conveyances of Amos Wyman, upon whose estate the levy under which he claims title was made. ■ Exceptions overruled. Cutting, Dickerson, Barrows, Daneorth and Yirgln, JJ., concurred.