Lynde v. McGregor

| Mass. | Oct 15, 1866

Gray, J.

By the statutes of this commonwealth, the real estate of Mrs. Boardman remained, notwithstanding her marriage, her separate property, not subject to the interference and control of her husband, or liable for his debts; and might be conveyed away by her, either with his assent in writing, or without such assent with the approval of a judge of this court or of the superior court or the probate court. Gen. Sts. c. 108, §§ 1, 3. Hills v. Bearse, 9 Allen, 403. Staples v. Brown, ante, 64. These statutes are inconsistent with the hypothesis that the husband has any estate in his wife’s land, which he can convey separately during her lifetime, or which will pass to his assignees in insolvency. The provision of the tenth section of the same chapter, that nothing contained in the preceding sections shall destroy or impair the husband’s rights as tenant by the curtesy, or enable the wife to do so by will or conveyance without his written assent, secures to him only the enjoyment of the estate himself, and gives him no greater right during their joint lives to alienate his interest by a separate conveyance than a wife under the earlier law had over her right of dower in her husband’s lands. The mortgage executed by Boardman and his wife to McGregor cannot therefore be avoided by the plaintiffs as in fraud of his creditors.

As to the amount of money afterwards expended by the husband upon the wife’s land, the evidence introduced by the parties at the hearing is not specific enough to enable the court to determine whether the plaintiffs are entitled to any relief by reason of such expenditure; but affords the means of laying down general rules to guide further inquiry. McGregor is found to have actually advanced to the husband the sum of two thousand dollars upon the mortgage of the wife’s land ; and is entitled, as against the wife, to hold his mortgage as security for the repayment of that sum. The wife had no knowledge of her husband’s pecuniary condition, and is not shown to have participated in any fraudulent act or intent.

Under these circumstances, if no greater sum of money was expended by the husband after the execution of the mortgage upon the land than two thousand dollars, the sum which had been raised and charged upon the land; or if more than two thousand dollars was so expended by the husband, but the excess above that sum did not increase the value of the land above what it would have been without it; his creditors or assignees in insolvency have no equity against the wife, who has participated in no fraud against such creditors, and whose estate has received no benefit from the transactions of the husband. But if more than two thousand dollars has been expended upon the land since the making of the mortgage, and the excess over two thousand dollars has increased the value of the estate, then the amount of such increase in value, for which no consideration has been paid by the wife, and which has been added to her estate by the husband in fraud of his creditors, in equity belongs to them, and may be made a charge upon the land for their benefit.

The answers made in writing under oath by McGregor were clearly admissible in evidence against him. The fact that they had not been revised by his counsel did not make them incompetent, whatever effect it may have upon their weight.

The case must therefore be referred to a master to inquire and report what amount of money was fraudulently expended by the husband on the land after the making of the mortgage, and, if that amount exceeded two thousand dollars, how much the excess increased tne value of the land. All further directions are reserved until the coming in of the master’s report.