Felker v. Chubb

Grant, J. The bill in this cause was filed under How. Stat. § 5884, to recover for the benefit of creditors certain real estate alleged to have been fraudulently conveyed by one Archibald L. Chubb to the defendant. Shortly before Mr. Chubb’s death he made three conveyances to his wife, the defendant. One was a deed conveying the land in question, in which the consideration was stated at 84,000; another was a deed conveying 320 acres of land in Dakota, the consideration expressed being ■82,000; the third was a bill of sale of .personal property, the consideration being, as expressed in the conveyance, [26] a promise by her to pay the debts of Mr. Chubb, naming them. No consideration was paid by the defendant at the time the deeds were executed. Her own testimony is: “I asked Mr. Chubb why he did just as he did, and he said I was going out to Dakota, and he thought it would be better and easier for me to manage it if I had it in my own name.” It is urged by her counsel that the deeds should be-sustained, because her husband had received some money from her when they were married, in 1874, about 1$ years previous to his death; and because 6he had at one time joined him in executing a mortgage upon their homestead, when it is alleged he turned over to her some securities as a eons:deration for her executing the mortgage. It is evident from this record that these transactions, whatever they were, were not considered in the execution of these conveyances. Her testimony as to-the amount given her husband is too indefinite to form the basis of a legal or equitable right. She fixes the amount no nearer than “two or three hundred dollars.”“ She is unable to describe the securities that she claims, were turned over to her upon the execution of the mortgage. According to her own version, she kept them but a short ‘time, and then gave them back to her husband. The court below correctly found that— “ She held them as security merely, and voluntarily-surrendered them,' and voluntarily released the right they were given to secure.” It is clear that these conveyances were made -without, any adequate consideration. The court below found no-actual intent to defraud the creditors. In this we concur, but the effect was nevertheless to defraud the creditors. In such cases no actual intent to defraud need be-proven. The complainant is entitled to the relief prayed for. [27] The decree of the court below is reversed, with the costs of both courts. The amount due creditors is $556.68. Defendant will be allowed 90 days within which to pay this amount, with interest, and taxed costs. In default of such payment, the deed will be set aside as to complainant, and he directed to proceed to a sale of the property under the provisions of the statute. Morse, C. J., Long and Montgomery, JJ., concurred. McGrath, J., did not sit.