105 Mass. 385 | Mass. | 1870
The demandant obtained a divorce from bed and board, and a decree for alimony in the sum of $1100. Execution 'was duly issued upon this judgment, which she caused to be served by arresting her husband and committing him to jail. While in jail he executed the deed under which the tenant claims, and afterwards, having claimed support as a pauper, was discharged by order of the judgment creditor. Subsequently an alias execution was issued, which the demandant caused, to be levied upon the demanded premises, and within a year after the levy brought this writ of entry to recover them, upon the ground that they were conveyed to the tenant by Albert Chase, the judgment debtor, in fraud of his creditors. The jury, under proper instructions, have found that the conveyance was fraudulent, because made to delay and defraud the demandant. Upon these facts the tenant has raised several questions.
1. He contends that the demandant was not a creditor, and her husband not a debtor, within the meaning of the statutes against fraudulent conveyances. The same question was raised in Livermore v. Boutelle, 11 Gray, 217, and the court held that a wife who, after a divorce a vinculo, recovered a judgment for alimony, was a creditor within the protection of the St. of 13 Eliz. c.
2. The tenant contends that the demandant, having waived her attachment and arrested and imprisoned her husband upon the execution for alimony, thereby lost all other remedies. His argument is, that, by the commitment of the judgment debtor, the debt against him was satisfied and paid. Ho authorities are cited which support this doctrine. On the contrary, our statutes expressly provide that, when an imprisoned debtor claims support as a pauper and is discharged by the creditor, the debt and costs shall remain a legal claim against his goods and estate, and may be enforced against them in the same manner as if he had not been committed on the execution. Gen. Sts. a. 124, § 29. This provision applies to this case. The judgment debtor was imprisoned on an execution, and might be discharged in the same manner, and subject to the same provisions of law, as a person arrested' on an execution issued for debt or damages in a civil action. Gen. Sts. e. 124, § 23. The demandant, therefore, after the discharge of the debtor by her consent, had the right to enforce her execution, or any alias execution legally issued, against his goods or estate, including real estate conveyed for the purpose of delaying or defrauding her.
3. The tenant contends that the alias execution was not authorized by law, because it was issued without notice to Albert Chase. But there is no provision of law requiring such notice. As a rule of practice, notice of an application for an alias execution will generally be given; Newcomb v. Newcomb, 12 Gray, 28; but it is within the discretion of the presiding judge, and the failure to give notice does not invalidate the execution.
4. At the trial, the tenant excepted to the admission of evidence of the declarations of Albert Chase made before the conveyance to the tenant. We have no doubt this evidence was properly admitted. It has been uniformly held, since the decision in Bridge v. Eggleston, 14 Mass. 245, that the declarations of a
