Wilbur v. Nichols

[436] The opinion of the court was delivered by Powers, J. The bill in this cause was brought by the administrator of James Nichols in behalf of creditors to set aside the-deed of the intestate to the defendants, executed November 10,. 1884, and the cause heard with that of Mary E. Nichols against the same defendants ante 426. In the case of Mary E., the widow of James Nichols, the deed in question was held inoperative against the property rights of' the oratrix by reason of the fraudulent purpose which prompted-its execution. In this ease the master reports that he docs not find any fraudulent intent on the part of either party to said deed to defraud the rights of James Nichols’ creditors. It is well settled that a conveyance made by a debtor, though-upon an inadequate consideration, or upon no consideration at all, if no fraud be intended, is valid if the debtor retains sufficient property to pay his debts. Brackett v. Waito, 4 Vt. 389; Dewey v. Lang, 25 Vt. 564; Durkee v. Mahony, 1 Aik. 116. If the debtor is left solvent after such conveyance, creditors cannot complain. And the question of solvency is to be determined as of the-time of the conveyance. If at that time the rights of creditors are not defeated the happening of disaster afterwards, not-' contemplated at the-time of the conveyance, does not affect-its validity. Brackett v. Waito, supra. And in measuring the-solvency'of a debtor at the time of the conveyance sought to be impeached, -regard is to be had to ■ the state of things then existing. The possibility that he may die' and that an expensive administration upon his estate will follow, is a contingency that ordinarily would not arise and in a bona fide conveyance would never be expected. Hence, the expense of administration in this case is not a factor in deter, mining the solvency of James-Nichols on November 10, 1884. If a right to recover rent of Henry E. Nichols for his occupancy of the Essex farm and property covered by the lease made to him by his father, exists in the administrator, the funds are437 ample to satisfy the claims of creditors. The terms of the lease were embodied in a writing drawn by Judge Nichols, which was-held by him awaiting the signature of the parties, when James Nichols died: Henry went into possession of the premises and personal property under the lease as agreed upon, paid the rent for one. year and has remained in possession since, taking all the benefits conferred by the lease to his own use. He attempts to ignore his. tenancy under the lease and to set up a present title under the deed of Nov. 10, 1884. But' this deed by its terms postpones his rights thereunder to the lease he had theretofore taken. His right under the deed is subject to the lease, and as the lease was-to continue in force for three years, he could get nothing by the deed until then. He can take, under the deed, only in accordance with its terms. The written evidence of the terms of the lease is defective, but the agreement for the lease has been fully executed, and the tenant, having enjoyed the benefits of the contract, is bound to pay the rent, although the lease was not, whileexecutory, enforceable as a lease. Roberts’ Dig. 343, pl. 88. The decree of the Court of Chancery dismissing the bill is-affirmed and the cause remanded.