| Vt. | Feb 15, 1865
In order to enable the plaintiff to maintain this action of trespass quare clausum, he must have a title to the premises upon which the alleged trespass was committed, and his title to the hay sued for depended upon his title to the land.
If the land belonged to the defendant’s wife, and the defendant’s only interest was that of a husband in his wife’s land, then it was not liable to attachment or levy by his creditors, and no title was derived by the plaintiff from his levy thereon for the debt of the husband.
The land was conveyed solely to the wife, so that the legal title was in her, and not in the husband. But the plaintiff claims that the defendant in fact had an interest in the land, because he was legally holden for the payment of the note given for the $535. borrowed to make payment for it. The agreed case shows that he signed the note with his wife for the money so obtained, and joined with his wife in a mortgage deed of the premises in question, and also in a mortgage with her and her brother and step-mother of certain other premises, to secure the payment of the note.
His joining in the mortgage of these premises with his wife, has no 'tendency to show any interest or claim of interest in them in him, as his wife could not make a valid mortgage without joining her husband.
The fact that he signed the note with her, we think has very little . tendency to show that it was expected he would pay it, or that any reliance was placed upon the security of his name. The party loaning the money might have supposed that it was necessary to have his name to the note as well as to the mortgage. The fact that the payment of the note was wholly secured by mortgage of these premises, the title to which was in the wife alone, and of other premises belonging wholly to the wife and her relatives, in which the husband had no interest, shows quite clearly that it was regarded as a transaction of the wife, and not one for the benefit of the husband, and that it was not expected he would pay the note, or have any interest in the premises.
He had paid nothing whatever toward the premises, and the mere fact that his name was on the note given for money to pay in part for the land, when it does not appear that any reliance was, or could
But if this were otherwise, and it were shown that he paid the whole consideration, and the deed was taken to his wife for the purpose of keeping it out of the reach of his creditors, the plaintiff did not by his levy acquire the legal title, so that he could maintain either ejectment or trespass, guare clausum, upon it. If the defendant was the real owner of the land, and the title held by his wife was merely in trust for him, his interest was liable to be taken by his creditors by levy. But a levy and set-off of his equitable estate would convey to the creditor only the equitable estate, and the proper course must be taken to obtain the legal title, before an action at law can be supported upon the title. As the legal title was never in the defendant, the case stands differently from what it would, if the defendant had once been the legal owner, and had conveyed it away in fraud of his creditors. In such case the creditors may treat the deed from him as void, and the legal title as remaining in him. As the legal title was never in the defendant, if the deed to his wife was merely in trust for him, and was made so fraudulently as to his creditors, it could not have the effect to convey the legal title to the defendant. This was expressly held in Dewey et al. v. Long, 25 Vt. 564" court="Vt." date_filed="1853-05-15" href="https://app.midpage.ai/document/dewey-v-long-6575093?utm_source=webapp" opinion_id="6575093">25 Vt. 564.
These views of the case render it unnecessary to decide as to the effect of the plaintiff’s entry upon the defendants’ possession and cutting the grass.
Judgment affirmed.