73 Me. 233 | Me. | 1882
Case, to recover the amount of the defendant’s liability under E. S., c. 113, § 51, for knowingly aiding his father, Jabez Waterman, in an alleged fraudulent transfer of the latter’s farm, to secure it from creditors and to prevent its attachment and seizure on execution.
The relation of debtor and creditor which. subsisted, at the time of the conveyance, between the grantor and the plaintiff, depended upon the contingent liability of a prior, to a subsequent indorser of a negotiable promissory note. Such a liability established that relation (Thatcher v. Jones, 31 Maine, 528, 532) ; and it became fixed when the note was executed by the parties and put in the bank. Sargent v. Salmond, 27 Maine, 539, 542-3 ; Thompson v. Thompson, 19 Maine, 244; Howe v. Ward, 4 Maine, 195. And although the liability was still conditional when the grantor deceased, it survived against his personal representative and ripened into an absolute indebtment against his estate, and the relation was not affected by his decease.
At the trial before the jury, the defendant contended, and being there overruled, now ably urges that, assuming the conveyance to have been fraudulent, still, inasmuch as the debtor died before his debt was payable and his estate was decreed insolvent before judgment was recovered, the farm could not be " seized on execution,” and therefore the facts on which the plaintiff bases his action are not such as are contemplated by the statute.
It would seem to be a self-evident proposition that, such property of a debtor as, by positive statute provision, is exempted from attachment or seizure for the owner’s debts, is not susceptible of fraudulent alienation; for no creditor can, in legal contemplation, be defrauded by his debtor’s conveyance of property which is intangible by any civil process in behalf of such creditor. Legro v. Lord, 10 Maine, 161, 165. And doubtless if the farm in question had been worth but five hundred dollars instead of twenty-five hundred dollars, and the debtor had seasonably filed the homestead certificate in accordance with the provisions of E. S., c. 81, § § 60 et seq. the plaintiff would have no legal cause to complain of the conveyance.
And prior to 1839, for a similar reason any of those classes of property which could not be taken on execution at law, such as
The farm conveyed to the defendant was not exempt from attachment or seizure by any statute. To be sure it could not be seized on execution as the debtor’s property, not because it was exempt as that phrase is generally used and understood, but because before the judgment was recovered the estate of the debtor had been decreed insolvent, and that decree dissolved all attachments of it (B. S., c. 81, 65), and prevented the issuing of any execution on the judgment. B. S., c. 66, § § 16, 17.
If the defendant had, before the maturity of the note, conveyed the farm to a tona fide purchaser, it is familiar law that the farm then could not be attached or seized on execution by the plaintiff on his debt; but the defendant’s learned counsel would
But the defendant says that when the plaintiff proved his claim and took his dividend, he thereby abandoned his remedy under § 51.
In the first place he did not prove his claim before the commissioners, and they had nothing to do with it. His action was pending in the Supreme Judicial Court when the estate was declared insolvent; and instead of discontinuing his action and resorting to the commissioners, he recovered a judgment in this court; and the statute (c. 66, § § 16, 17,) "entered the sum on the list of debts.”
This is altogether different from the facts in Fogg v. Lawry, 71 Maine, 215. The plaintiff in that case, after commencing his action under § 51, filed a petition in bankruptcy against the defendant on which the latter was declared a bankrupt, caused the
The aim of bankrupt and insolvent statutes is to make a just and equitable pro rata distribution of debtors’ property among their creditors and assignees charged with this duty receive the authority to pursue property conveyed by a debtor in fraud of creditors. Freeland v. Freeland, 102 Mass. 475; Glenny v. Langdon, 98 U. S. 20; Trimble v. Woodhead, 102 U. S. 647. And for the same purpose executors and administrators, when the estates of their testators and intestates have been decreed insolvent, have alone the same authority, as the representative of all having an interest in the distribution. McLean v. Weeks, 61 Maine, 277; S. C. 65 Maine, 411; Caswell v. Caswell, 28 Maine, 232. But there seems no power to compel action on the part of a personal representative as there is under the bankrupt law (Trimble v. Woodhead, supra) ; the only remedy (in the opinion of Tenney, C. J.) being to remove the administrator in case of his refusal and the appointment of some one who will act. Caswell v. Caswell, 28 Maine, 235. But these cases have no application to an action brought under the express unconditional provisions of a statute in no wise pertaining to the insolvent estates of deceased persons.
But it is urged that inasmuch as the executor can maintain a bill and recover the whole farm for the benefit of all the creditors,
If it be said that in this way the plaintiff would recover all of his debt while the other creditors would not fare so well; the answer is such a result not infrequently happens even in equity. "It is a well established principle,” says Whitman, C. J., "when a creditor has, through the instrumentality of a court of equity, sought out and discovered the property of his debtor, which he had before been unable to discover and seize upon execution at law, that he becomes entitled to a preference over other creditors, to have his judgment first satisfied, even under the insolvent laws.” Gordon v. Lowell, 21 Maine, 251, 257. To the same purport'are McDermutt v. Strong, 4 Johns. Ch. Cas. 687, and the 'numerous cases cited by Ch. Kent in that case, and in Thompson v. Brown, 4 Johns. Ch. Cas. 619.
In Fletcher v. Holmes, 40 Maine, 364, 368, where a bill in equity brought by an administrator in behalf of the creditors to obtain property belonging to his intestate, was defeated by reason of not having exhausted legal remedies, the court suggested that the creditors there had the remedy now pursued by this plaintiff.
We now come to the two exceptions taken to instructions in the charge.
After stating to the jury the principal issue, whether the grant- or, when he made the conveyance, intended thereby to defraud,
All these instructions obviously relate to the question, whether or not any such oral contract as the defendant set up, was ever in fact made between himself and his father; and the jury must, under the instructions, have found for the plaintiff on that issue. And on that issue, it was immaterial whether it was valid or binding upon the parties. And, of course, if no such contract was made, there was no occasion for the court to instruct the jury as to its validity upon the main issue. We fail, therefore, to perceive wherein the defendant could have been aggrieved by the instruction, so far as the objection raised by the defendant is concerned.
But there is another view equally fatal to the exceptions. Assuming what the case nowhere shows, that the defendant contended below that the deed was made to carry out the oral contract which being taken out of the statute of frauds by part performance on the part of the defendant, it was proper for the jury to consider it, if valid, on the question of the grantor’s intention in making the conveyance; and assuming, against the finding of the jury, that the contract, as testified to by the defendant, was actually made, we still think the defendant was not aggrieved "by the instruction that the validity or invalidity of the contract was immaterial.
The general rule has long been settled that a part performance by the purchaser, of an oral contract for the sale and purchase of land, may take the contract out of the operation of the statute of frauds, and authorize a court of general equity powers, in the exercise of a sound discretion, to decree specific performance of the contract on the part of the vendor. 2 Story’s Eq. Jur. § 259 el seq. 1 Sugd. Vend. (8th Am. ed.) c. 18, § 7. 4 Kent’s Com. 451. Browne, Frauds, § 452. This is said to be upon the ground that one party shall not interpose the statute of frauds to defraud the other party, it appearing that it would be a fraud upon the latter who has acted in good faith relying.that the former would do the same, if the contract is not, completed. And although this court has heretofore, on account of limited equity
But whether the alleged contract was such as the court in its discretion might enforce is immaterial to our present inquiry; for the proposition cannot be successfully maintained that the conveyance did in fact fulfill on the part of the grantor the oral contract. All the witnesses of the defendant upon that subject matter testify with noticeable uniformity as well as unanimity that the defendant was to "have one-half of everything right through;” but the deed conveyed in fact more than three-quarters of the real estate and there were only seventeen dollars’ worth of personal.
The defendant does not press his motion, and we think there is ample testimony on the part of the plaintiff to support a verdict in his behalf, if the testimony is true, as the jury, who saw the witnesses, have declared by their verdict. And it is considerable less in amount than the evidence would warrant; but of this fact the defendant has no reason to complain.
Motion and exceptions overruled.