143 Mass. 365 | Mass. | 1887
The report finds that there was evidence tending to prove that the plaintiff, on February 21, 1879, recovered judgment in the Superior Court against the defendant Eliza C. Goodell, in an action upon a promissory note dated April 1, 1869; that execution issued on the judgment, which the plaintiff levied upon the equity of redemption of this defendant in the pasture lot; that the execution was returned satisfied; that this levy was declared void; that on March 30, 1883, the plaintiff brought a writ of scire facias in the Superior Court; and that, at December term, 1884, this levy was set aside, and execution was ordered to issue for the “ amount of the original judgment, without interest or costs, but to be suspended during the pendency of this suit, or until further order.” The levy of execution by Daniel M. Chamberlain, for the benefit of Andrew M. Chamberlain, upon this defendant’s equity of redemption in the farm, and the sale of it to the plaintiff, were void, for the same reason that the plaintiff’s levy and sale were void, namely,
The deed which the plaintiff seeks to have declared void was given by said Goodell to Daniel M. Chamberlain, the other defendant, on January 5, 1881. At this time the plaintiff’s levy had not been declared void by the court, but the question of its validity was in controversy. The record of his suit then showed that his judgment had been satisfied, and it may be that the plaintiff, while his judgment remained satisfied of record, could not have maintained any suit upon the judgment, and could not have attached the defendant’s property in any proceeding upon the judgment, and that his only remedy was by scire facias under the statutes. Dennis v. Arnold, 12 Met. 449. Perry v. Perry, 2 Gray, 326.
But if the levy was actually void, the defendant was still indebted to the plaintiff,^although this indebtedness must be established in a particular manner; and, if the defendant knew or was advised that the levy was void, she could actually intend to defeat, delay, or defraud the plaintiff in making a conveyance of her property, although his judgment remained satisfied of record. Besides,’ a conveyance made upon a secret trust, and with an actual fraudulent intent, may be avoided by subsequent creditors. Parkman v. Welch, 19 Pick. 231. Wadsworth v. Williams, 100 Mass. 126. Day v. Cooley, 118 Mass. 524. Dodd v. Adams, 125 Mass. 398. Bristol County Savings Bank v. Keavy, 128 Mass. 298.
One question of law raised by the report is whether there was evidence for the jury that the conveyance was made by the defendant Goodell “ with intent to defeat, delay, or defraud her creditors, or on a secret trust for her, express or implied,” and whether the defendant Chamberlain “ participated in said fraudulent intent and purpose.” The defendants were brother and sister, and were living together, the deed was given under the advice of her counsel, and there was clearly evidence on which the jury might find that both the defendants knew or believed, at the time the deed was executed, that the levies upon both the
It is plain that the plaintiff’s motion that the court direct the jury to find the issue in the' affirmative ought not to have been granted. The burden was upon him, and there was no admission or concession by both defendants from which such a verdict must necessarily follow. The question was for the jury. The verdict must be set aside, and a
New trial ordered.