280 Mass. 96 | Mass. | 1932
This is a bill in equity wherein the plaintiff, under the provisions of c. 109A .added to the General Laws by St. 1924, c. 147, seeks to set aside a conveyance of real estate from the defendant Max Spack to his wife the defendant Rebecca Spack on the ground that the conveyance was without consideration and made for the purpose of hindering, delaying and defrauding the plaintiff in collecting a judgment. The defendants demurred. An interlocutory decree was entered overruling the demurrer, and the defendants appealed from the “order, dismissing the defendants’ demurrer.” Upon the filing of the defendants’ answer the case was referred to a master under an order “not to report the evidence . . . without special order of the court.” The record does not disclose that such an order was made.
The findings of the master in substance disclose that prior to February, 1929, the plaintiff brought an action against The Eastern Tire and Rubber Co. Inc., of which the defendant Max Spack was a director; that a special precept issued from the Superior Court under which an attachment of the goods of The Eastern Tire and Rubber Co. Inc. was made, and a keeper was put into its place of business; that The Eastern Tire and Rubber Co. Inc. for the purpose of dissolving this attachment gave a bond in the penal sum of $1,500 with two sureties, one of whom was Max Spack. The writ in the action against The Eastern Tire and Rubber Co. Inc. was dated December 20, 1928. On November 22, 1929, the plaintiff recovered a verdict against The Eastern Tire and Rubber Co. Inc. in the sum of $562.50 and the case was reported to this court, where the verdict for the plaintiff was affirmed •— see Amer Realty Co. Inc. v. Eastern Tire & Rubber Co. Inc. 274 Mass. 297 — and on April 21, 1931, judgment in the Superior Court was entered for the plaintiff in the sum of $639.71 damages and $71.30 costs of suit. A petition in bankruptcy was filed on July 11, 1930, and on November 10, 1930, The Eastern Tire and Rubber Co. Inc. was adjudicated a bankrupt in the District Court of the United States for the District of Massachusetts.
The master found that on July 15, 1930, the day of the conveyance, Max Spack was not insolvent, unless the conveyance of the realty and the withdrawal of the money from the banks and the concealment of it rendered him so.
On the foregoing facts and the reasonable inference to be drawn therefrom we think that the master was fully warranted in finding that the property as described in the plaintiff’s bill of complaint was conveyed by “the defendant Max Spack to his wife, the defendant Rebecca Spack, for the purpose and with the intent to hinder and delay the plaintiff in satisfying a judgment which, at the time of the conveyance, the defendant Max Spack had reason to believe the plaintiff would ultimately recover.” This being a finding of actual intent to defraud by the defendant, the case is governed by G. L. c. 109A, § 7. We are of the further opinion that the plaintiff at the time of the conveyance was a creditor of the defendant as that relation is defined in G. L. c. 109A, § 1.
Ordered accordingly.