Maloney v. Horan

Gilbert, J. The legal effect of a wife’s uniting with her husband in a conveyance of his lands, is to release her dower. Before admeasurement, she has no interest or estate in the lands, and her deed operates not as a grant, but as an- estoppel. (Green v. Putnam, 1 Barb. 500. Moore v. Mayor, &c. 4 Seld. 110.) When the deed of the husband has been avoided, at the suit of creditors, on the ground that it was made with intent to hinder, delay or defraud them, there remains an estate in the fraudulent grantee, which is sufficient to support or feed this estoppel; for the fraudulent deed is [39] good and effectual as between the parties to it. A payment by the fraudulent grantee or grantor to the creditors, of their debts, would extinguish the same, and render his title valid. The relation of the creditors to the property is analogous to that of eestuis que trust, in a trust resulting under the statute of usés and trusts. (1 R. S. 728, § 52. Garfield v. Hatmaker, 15 N. Y. Rep. 483.) Whatever consequence may ensue from, proceedings by the creditors in invitum for the enforcement of their remedy, upon the estate fraudulently conveyed, is attributable to the statute, which, in conjunction with the decree, acts directly upon such estate, and divests so much thereof only as may be necessary to obtain satisfaction of the claims of creditors; and the wife’s dower in that part of the estate so divested will be as effectually barred as in the part which may remain vested in the fraudulent grantee. There cannot, in the nature of the case, be any severance. And só if the whole estate be taken away; because this results from the enforcement of the remedy, and not because the fraudulent deed conveyed nothing to the grantee. (See Manhattan Co. v. Evertson, 6 Paige, 457; Meyer v. Mohr, 1 Rob. 333; Den v. Johnson, 3 Harris, 87.) The contrary doctrine has been held in some of our sister states, but upon grounds which are not satisfactory to us. (Robinson v. Bates, 3 Metc. 40. Woodworth v. Paige, 5 Ohio R. 70. Miller v. Wilson, 15 id. 108. Pierson v. Williams, 23 Miss. R. 64.) It appears that the plaintiff took a conveyance of the estate conveyed by her husband from the fraudulent grantee, and that this was done in furtherance of the original intent to defraud. Having participated knowingly and designedly in this fraud, the court will not help her to undo the consequences of her acts, one of which was to accept a merger of her dower, in the fee conveyed to her. As she cannot be endowed of her own lands, the taking of this conveyance destroyed the claim, if any, which [40] existed before. And, as we have seen, the avoidance of such a conveyance, by creditors, still leaves the conveyance effectual as to all the estate conveyed, except that which shall be divested for the purpose of paying them; and if this takes the whole estate, it is not because the deed is absolutely void," but because the statute authorizes it, and it is necessary to enforce the decree. [Kings General Term, December 19, 1868. We think also that the plaintiff’s statement to the defendant at the sale, that she had no claim upon the property, and her request to him to purchase, on the faith of which he. became the purchaser, and her taking a lease from the defendant after the purchase, work a perfect and effectual estoppel in pais against any claim or. title in hostility to that which the defendant acquired at such sale. (Dougrey v. Topping, 4 Paige, 94. Smiley v. Wright, 2 Ohio R. 511. Tilton v. Nelson, 27 Barb. 595. Wood v. Seely, 322 N. Y. Rep. 105.) We are, therefore, of opinion that the judgment should be affirmed, with costs. J. F. Barnard and Tappen, JJ. concurred.. Lott, J. concurred, except as to an estoppel in pais. Judgment affirmed. Lott, J. F. Barnard, Gilbert and Tappen, Justices.]