Draper v. Buggee

Field, J. Whatever may be the law in regard to voluntary conveyances to others, a conveyance made on the meritorious consideration of blood or affection to a child, or as a settlement to a wife, is not per se fraudulent and void as to existing creditors. Whether it is so depends upon the circumstances of the case and the actual or presumed intent of the grantor. Winchester v. Charter, 12 Allen, 606, and 102 Mass. 272. Lerow v. Wilmarth, 9 Allen, 382. Thacher v. Phinney, 7 Allen, 146. A conveyance made by a husband through a third person to a wife, on a consideration of money received from the wife, which, but for the relation of husband and wife, would be a valuable consideration, in law is not, as against creditors, regarded as a voluntary conveyance. Atlantic National Bank v. Tavener, 130 Mass. 407. Bancroft v. Curtis, 108 Mass. 47. Whether such a conveyance can be avoided by a creditor for the fraud of the grantor, ■ without showing a participation in that fraud by the grantee, need not be decided in this case. Since the passage of the St. of 1874, c. 184, the money received by the wife, in this case, for her labor in the mill, must be regarded as her separate property, and the payment by her therefrom of her husband’s note for $50, and of the principal.and interest of his debts secured by mortgages upon the property, but for the relation of husband and wife, would have been a [263] valuable consideration in law for the conveyance. These sums she paid in pursuance of the arrangements “ made in connection with her husband’s conveyance to her.” The effect of the previous payments by her on account of the mortgage, we do not consider. The conveyance cannot be regarded as voluntary. The exceptions do not show that the demandant was an existing creditor at the time this conveyance was made, or whether any debts of the husband existed except those which the wife agreed to pay, and did pay, out of her separate property. The circumstances attending the conveyance were not such that the law necessarily implies fraud. It is not plain what questions of law are raised by these exceptions. It is said: “ The judge, upon the subject of conveyances in fraud of creditors, gave full instructions, which were not objected to, excepting as to matter of consideration ; but the judge refused to give the following instructions, asked for by the demandant’s counsel, in the form in which they were presented. The modifications and qualifications made by the judge in the. instructions are hereinafter stated.” Then follow a statement of what the tenant claimed and a ruling of the court, and it is said, “ To the foregoing instruction no specific objection was made, excepting so far as such a specific objection is implied in the instructions asked for by the demandant, and refused.” The instructions asked for were, in effect, that the payment of the money upon the mortgages made by the tenant before the conveyance to her, out of her earnings, was not a sufficient consideration for the conveyance, and that the payment of the husband’s note for $50 out of her earnings was not a sufficient consideration “ to support the transfer by the husband to her of the property of the value that this property was.” The court gave the instruction, that such payments were not, in and of themselves, a sufficient consideration for the conveyance, or to support the transfer by the husband to her of property of the value that this property was, “ because in fact no payment of that sum or any other sum by the wife to her husband, or in his interest or in improving his estate, would constitute such a consideration.” “ But the fact of such payments, and that they induced the parties to make the conveyance, may be considered as tending to repel an inference of fraud towards creditors arising from the [264] fact that there was no money paid in consideration of the conveyance,” and also may be considered “ as tending to show that the conveyance was a reality, and not a sham.” These facts were certainly competent on the question of a fraudulent intent on the part of the husband in making the conveyance, and the ruling of the court, that the conveyance could not be regarded as made upon a sufficient consideration, was certainly favorable enough to the demandant. There is a clause in one of the instructions of the court to which no exception was taken, which, taken alone, might be construed to mean that this conveyance, even if made on considerations of a moral nature such as are therein described, would be valid as against a creditor, if the wife “ did not know, and had no reason to know, that her husband had a fraudulent purpose; ” but the whole of the instructions upon the subject of conveyances in fraud of creditors is not set out, and as no exception was taken to this, and it was not noticed in the argument or brief of the demandant’s counsel, it cannot be considered. The case has been put by the demandant’s counsel in argument solely on the ground that the conveyance was voluntary, and fraudulent in law as to existing creditors. Exceptions overruled.