Carr v. Wight

Crosby, J. On June 28,1923, the defendant Alfred Wight was adjudicated a bankrupt and- the plaintiff was duly appointed trustee of his estate. The trial judge made the following findings and rulings: In August, 1922, Wight purchased a parcel of real estate, taking a deed in the name of his wife, the defendant Victoria Wight. He paid as part of the purchase price $1,700, and with his wife executed a mortgage for the balance. A short time thereafter they gave on the same property a mortgage to a cooperative, bank for $4,500, out of which the prior mortgage was paid and the balance was used by Wight in his. business. In May, 1923, [85] Wight applied to the defendant Locke for further credit in excess of $1,500 then due to the Locke Lumber Company, and to obtain such credit gave to Locke a note signed by himself and his wife, secured by a mortgage upon said real estate for $1,500, also signed by himself and his wife. “ Locke at the time knew that the defendant Wight was in financial distress, and that there was no other property with which to secure him, except the property standing in the wife’s name. No further credit was actually given.” The note and mortgage were taken in payment of past indebtedness. The bill in part seeks to set aside this mortgage on the ground that it was a preference. The wife paid nothing for the land. The husband had the property placed in the name of the wife in order that she and his children might have a home, but he said nothing to her of this purpose. She executed the mortgages at his request to enable him to raise money to carry on his business, “apparently on the assumption that he still retained control of the property. I find that he intended to keep such control and did keep it.” The judge further found that at the time the property was put in his wife’s name, Wight was deeply in debt; that the conveyance was in fraud of his creditors, and that they could have avoided it by proper proceedings as against the wife. No such proceedings were taken. As the evidence is not reported these findings must stand. The judge ruled that the bill would not lie against Locke; that he had a right to assume that the property belonged to the wife; and that he was not put upon inquiry to determine the husband’s interest therein. This is not a case where real estate, title to which stands in the name of the bankrupt, is by him transferred or mortgaged .to one of his creditors. Here the title stood in the name of the bankrupt’s wife, and Locke took the mortgage to secure a debt without notice or knowledge that she was not the real owner or that her husband had any interest therein. In these circumstances the court rightly ruled, in substance, that the mortgage was not a preference and therefore was not invalid under the bankruptcy act. [86] As the rights of the plaintiff as trustee in bankruptcy against the defendants other than Locke are not before us, they need not be considered.' Decree affirmed with costs of the appeal.