62 N.H. 401 | N.H. | 1882
This proceeding being one in behalf of a creditor to enforce the payment of a debt existing at the time of the conveyance in question, it is unnecessary to determine whether the husband had a resulting trust in the land; and there being no valuable consideration for his contribution to the purchase, it is likewise immaterial whether it was made in good faith, or otherwise. If it naturally had the effect to hinder, delay, or defraud the plaintiff, and such has been the result, then, as against her, the law will presume it to have been fraudulent, and the presumption is conclusive. The question to be decided is not one of motives, but of consequences: "the intent is to be assumed from the act." It is axiomatic, that debts must be paid before gifts can be made; and it is also an established principle, that a voluntary conveyance is prima facie evidence of a fraudulent intent against creditors, and if made by a person who is indebted, is a well recognized badge of fraud, for its natural and probable tendency is to delay, hinder, and defraud creditors. Bump Fr. Conv. (2d ed.) 268, 269, and cases cited. This presumption of fraudulent intent may of course be rebutted by proof that the donor or grantor retained ample means to satisfy his debts; and this is the defence these defendants set up against the presumption, and which they must establish by clear and satisfactory proofs founded on the comparative value of the gift or transfer to the wife with the husband's assets.
From the facts in the case, it appears that when the conveyance was made the husband had no property open to attachment other than a promissory note upon which there was due between $900 and $1,000; and a material inquiry then is, Could he withdraw $500 of this fund in the way he did without materially impairing and lessening the plaintiff's then existing prospects of payment? We think it is extremely plain that he could not. It is true that enough was left to satisfy the plaintiff's claim, but it was barely enough, and, moreover, shortly began to decrease, and so continued, until at the end of sixteen months it had wholly disappeared, not, so far as appears, through some unavoidable or unexpected calamity, but in the ordinary course of events. This fact of itself demonstrates that the pecuniary condition of the husband forbade the conveyance. The natural if not inevitable effect of it was to hinder, delay, and defraud the plaintiff, and therefore the law presumes it was so intended. And this presumption is not rebutted by showing that no fraud was actually intended, for no man is permitted to say that he does not intend the necessary consequence of his own voluntary act; nor by proof that the donor was barely solvent after the making of the conveyance, for "if in the ordinary course of events the donor's property turns out to be inadequate to the discharge of his debts, the presumption of fraud remains, although the property reserved may have been deemed originally adequate to that purpose." Bump Fr. Conv., before cited, 281. *404
In the most favorable view to the defendants which can be taken with any regard to elementary legal principles, the conveyance was without valuable consideration to the extent of the husband's contribution, and a case is therefore made entitling the plaintiff to a decree for a conveyance to her by the defendants of five ninths of the premises in question which were paid for by the husband, but inasmuch as a married woman is not entitled to a homestead in her own estate, but is in that of her husband, the five ninths so conveyed will be subject to the right of the defendant wife to a homestead therein.
Decree accordingly.
ALLEN, J., did not sit: the others concurred.
