Merithew v. EllisMerithew v. Ellis
Real action. Plea nul disseizin with brief statement claiming compensation for improvements. On report.
The real estate in question was conveyed to Henrietta H. Reed on April 18, 1888. After its purchase Mrs. Reed procured credit at the store of John M. Ames & Son of Stockton Springs, the last item of the account being dated March 15, 1889, and on that date thе balance due was §33.66.
On June 6, 1889, while this balance was still unpaid, Mrs. Reed, a widow, conveyed the premises, consisting of a small house and lot, to her daughter Flora B. Reed, then fifteen years old, the consideration being the oral agreement of the daughter to care for her mother during her life. The debt from Mrs. Reed to Ames and Son remaining unpaid, they brought suit аgainst her on December 22, 1894, and attached her real estate. Judgment was rendered for the plaintiff in this suit at the January term, 1896, and after seizure on execution the propеrty in question was sold at sheriff’s sale on February 26, 1896, to the judgment creditors, Ames and Son, and a sheriff’s deed was duly executed and delivered to them.
The plaintiff’s title is derived from Flora B. Reеd, by deed dated November 2, 1901; the defendant’s from Ames and Son under the sheriff’s deed through various mesne conveyances.
After her purchase of the property in 1888, Mrs. Reed continued to occupy the premises until her eviction by the sheriff in September, 1902, during the alleged ownership of one Devereaux, a grantee in the defendant’s chain of title, аnd she paid all taxes assessed thereon according to the plaintiff’s testimony. Flora B. Reed remained on the premises until November 2,1901, when she conveyed to her sister, thе plaintiff, who agreed to continue the support of the mother during the remainder of her life. After the eviction in September Mrs. Reed, however, went to Belfast to again fivе with her daughter Flora, and remained with her until her death, March 3, 1903.
The issue here is between the plaintiff the source of whose title is the deed of June 6, 1889, the consideration of which wаs admittedly an agreement for future support of the grantor by the grantee, and the defendant, the source of whose title is the sheriff’s deed based on
The defendant attacks the deed of June 6, 1889, from the mother to her minor daughter, relying upon the familiar principle that a conveyance of a debtor’s entire property in consideration of future support is purеly voluntary and prima facie voidable as to existing creditors. Such is the law. Webster v. Withey, 25 Maine, 326; Rollins v. Mooers, 25 Maine, 192; Egery v. Johnson, 70 Maine, 258; Graves v. Blondell, 70 Maine, 190; Spear v. Spear, 97 Maine, 498.
But another rule is of equal force, that if in the performance of such an agreement, the support has been actually furnished in good faith so that the consideration has been subsequently paid, the conveyance will be upheld. “Such a conveyance will not be set aside at the instance of creditors, after the support has been furnished in reliance on it, which in value exceeds that of the property conveyed.” 12 R. C. L., 547. Kelsey v. Kelley,
For almost six years Ames and Son allowed the daughter to perform her agreement before they brought suit on their claim and it was not until September, 1902, thirteen years after the deed was given, that the mother was evicted and possession taken by a predecessor of the defendant in title.
That the dаughter contributed to the support of the mother at an expense far greater than the value of the property, before Ames and Son made any move to enfоrce their rights, is apparent from the evidence. The value of the property was only one hundred dollars and certainly she contributed greatly in excess of twenty dollars per year for the five years after she received her deed. At the time the creditors began proceedings full consideration had therefore been paid аnd the conveyance was no longer voidable. On what principle of law should the creditors be allowed to step in and appropriate property that hаd been paid for in full? What preferential rights had they under these circumstances? As the court said in Kelsey v. Kelley,
Here thirteen years elapsed before the daughter was made aware of even the alleged infirmity of her purchase. Six of these years had been during her minority and seven after attaining her majority.
The fаct that Flora was a .minor at the time of the conveyance and agreement does not destroy her rights. Obviously she had been emancipated by her mother. As defined by our court “Emancipation must be by consent, express or implied, of the parent if living, and is an entire surrender of all right to the care, custody and earnings of the child as well as a rеnunciation of parental duties.” Lowell v. Newport, 66 Maine, 78. It “occurs by the voluntary act of the parent in surrendering the rights and renouncing the duties of his position, or, in some way conducting the relation thereto in a manner
For these reasons it is the opinion of the court that the plaintiff should prevail. The conveyanсe from mother to daughter with value fully paid at the time of attack by creditors must stand.
The defendant sets up a claim for improvements made by himself and his predecessors, but thе evidence is so meagre and unsatisfactory on this branch of the case that it is impossible to form an intelligent opinion on this important point. The case will thereforе be remanded to nisi prius in order that a determination of that question alone may be made, as provided by R. S., (1916), Chap. 109, Secs. 20, 24, 25 and 26.
In this way exact justice will be done to all the parties in interest.
Case remanded to nisi prius for further proceedings in accordance with opinion.