This case is made from the disclosures of the trustees, also from the facts found by the judge at the recent Trial Term upon the several issues made on the pleadings in behalf of Mrs. Bigelow, wife of the principal defendant, and Asahel Bennett and Latón Martin, claimants, under different circumstances, of five promissory notes, signed by the alleged trustees, dated January 19, A. D. 1861, and made payable to Mrs. Bigelow or order; each note being for $140, with interest after April 1, 1861, and all on time. Under the agreement of the parties, the court found the facts, and we are to take such as are reported as true, and to draw such inferences from them as the law will allow, not imputing fraud, unless legitimately arising out of the transactions as stated.
1. The court says, the allegations of the plea of Asahel Bennett,the claimant of the third, fourth and fifth notes aforesaid, are true. This .being so, said Bennett stands, here in the light of an innocent endorsee of said notes, and is protected from the claim of the plaintiffs, as creditors of Enos Bigelow. Before the service of this trustee process, and on the same day the notes were given, these three notes were sold and delivered upon full consideration to said Bennett to pay an equal amount of indebtedness from the principal defendant to him. This transaction had the approbation of all in interest, and seems to have been in good faith, and we do not see how the plaintiffs, or any other creditor of Bigelow, can now question it, or divest Bennett of the rights acquired by him by -virtue of his settlement. He is, therefore, to be considered as justly entitled to hold the aforesaid three notes as his own property.
2. Mrs. Bigelow was the claimant of the other two notes in her own right; the consideration of the same being part of the price of the premises sold and conveyed by her husband to the trustees. These notes are presumed to have beenin her possession at the time of the service of the trustee process. Afterwards by her procurement, and through the agency of her .husband, these notes were severally negotiated to the Ashuelot Bank .and to Latón Martin. The Bank and Martin both derive their title through Mrs. Bigelow, and it becomes material to examine the grounds of her claim to them. If her title to them be sound, she could doubtless transmit a good title to the present holders. She seeks to establish her right to these notes, by showing that their consideration was founded upon her own interest or property, released by her by virtue of the conveyance of the premises to the trustees, executed on the day of
It is clear that a mere voluntary settlement made by a husband upon his wife during the marriage, he being in debt, is void as against creditors ; but it is equally clear that a conveyance made in trust for the wife after marriage upon the transfer to him by the wife of an equivalent out of her property will be sustained both in equity and at law. For the case supposes that whatever is taken from the funds of the husband, whereby he might satisfy his creditors, is replaced by an equal amount from the funds of the wife, which his creditors might not otherwise reach. Ballard v. Briggs,
The plaintiffs insist that the consideration of these notes was the property of the husband. The wife answers that they were founded on the release of her right of dower and her homestead right, and also upon the discharge of her mortgage upon the said premises, sold and conveyed to the trustees. The case finds that Bigelow has acquired by purchase a new homestead, and, as the wife cannot hold but one homestead at one and the same time, she cannot therefore be entitled to any other right except that now owned and possessed in common with her husband. She has parted with one right to resume another of a like nature in the new estate. Therefore she cannot be heard to establish a consideration for the notes on this ground. Horn v. Tufts, 39 N. H. 478. But her release of dower in the premises sold to the trustees stands on a different footing. This right of dower is deemed valuable in her who owns it, and is estimated in proportion to the worth of the whole estate, and is properly the subject of bargain and conveyance by fine in England, and by deed with us. Its value also more or less depends upon the relative ages, constitution, habits and health of the husband and wife. So long as the husband lives, this estate may be considered as contingent and of which the wife cannot be divested but by her own act and consent, crime, or death before her husband.
It has been settled that a relinquishment of dower by the wife, during her husband’s life, in a deed by the husband of his estate, is a good and valuable consideration for a conveyance by the husband to the wife of property which may be considered a fair equivalent; and such a conveyance will be valid or otherwise against the creditors of the hus
Under the authority of the law'recognized in these cases, and in consideration of the release of dower by Mrs. Bigelow in the estate sold to the trustees, we think an equivalent equal to the value of her estate might be reserved on her part, and that this might justly enter into and form the consideration of these two notes executed to herself. In addition to these was the surrender of her interests acquired by her husband’s note and mortgage to her father Bennett, which existed as a lien upon a part of the estate conveyed to the trustees, and was intended as a gift to her by her father, and perfected only by his administrator. It is suggested that the said surrender of the note and mortgage was intended to operate as a final discharge of the same, therefore enuring to the husband’s benefit, and not to her benefit as assignee of her father’s rights. Such was not apparently the intent of the parties. The arrangement was doubtless intended to bestow an advantage upon the wife. In estates acquired by the act of the parties, they merge or not, and mortgages are extinguished or not, according to the intent of the parties, as collected from the deed, or circumstances of the transaction, and where these furnish no evidence of the intent, then from the interest of the parties. Greenleaf’s Note to 1st Cruise, 289. This doctrine has been settled in many cases in this State. Bell v. Woodward, 34 N. H. 96, and cases cited.
It was the right and interest of the wife to keep the mortgage alive. The delivery of the note was to her, which by operation of law carried with it the mortgage; and she accordingly had the legal right, upon the release of the mortgage, to take security to herself in another form equal to its value and amount. Of course, it worked no more prejudice for her to receive the amount of this lien than it would if the administrator of Bennett had enforced it in his own name. The creditors of Enos Bigelow had no right to complain of the transaction. This note was dated in July 1853. There is nothing shown as to the payment of any part of it. At the time of the sale to the trustees, the amount of the note would have exceeded $220. We have not the means of ascertaining the character of the other claims, which made up the balance of the other indebtedness of the defendant to his wife. We only know from the case, that all the indebtedness of the husband, which originated from funds from her father was in amount $462.71. If any portion of this amount consisted in claims that should not have been enforced, it belonged to the plaintiffs, under the issue of the Trial Term, to have specified and resisted them by competent proof. As the case now stands, the whole amount having been proved, and assented to by the husband,, we are unable to reject any portion of it.
In reviewing the facts of the case, and more especially the circumstance, that three of the notes in dispute went, as appears to us, to discharge the proper indebtedness of Enos Bigelow, the husband, and that the wife’s equities in the estate were found equal to the amount of the other two notes, we cannot find any ground for the maintenance of the trustee process- As the husband, the principal defendant, has not in any