90 Mass. 321 | Mass. | 1864
On the 28th of April 1857, the title to the demanded premises being in the defendant, James D. O’Sullivan, he made a mortgage of the same to the loan and fund association. On September 19th 1859 the deputy sheriff, Bayley, hp ving attached the equity of redemption on mesne process, and also taken it on execution against James D. O’Sullivan, sold the same and made a deed thereof to the defendant Ellen, the wife of James. But no title passed by this deed. Such a conveyance is made by an officer by virtue of a power created by statute. Dow v. Lewis, 4 Gray, 468. His attachment on mesne process and levy of the execution do not pass the title to himself, but merely create a statute lien for the benefit of the creditor. When the sale is made, his deed conveys the title of the debtor to the purchaser, and not any title of his own. If therefore, he could make a valid deed to the debtor’s wife, it would operate as a conveyance of the husband’s title directly from him to the wife. A wife has always been held incompetent to take a title directly from her husband during coverture, and the fact that the conveyance is executed by an officer by virtue of a statute power is not much less objectionable than a deed executed by the husband himself to his wife. The statute reserves to the debtor a right to redeem the property within one year, by paying or tendering to the purchaser the sum for which it was sold, with interest, and the amount expended for taxes, repairs and improvements, deducting rents and profits. The purchaser must make and acknowledge a deed of release to him, and, upon his refusal to render an account and execute a release, the debtor may bring a suit against him. The policy of the law is so strongly opposed to transactions of such a character between husband and wife that they could not have been within the contemplation of the statute.
When Crafts and Ward discharged their mortgage on the 27th of March 1862, the title to the equity of redemption was thereby revested in James D. O’Sullivan, and the assignment of the mortgage of the loan and fund association to him on the same day left the whole estate in him without incumbrance. On the first of May 1862, be quitclaimed the land to Charles J. McCarthy, on condition that McCarthy should convey it to the wife, and on the same day McCarthy conveyed it to her for a nominal consideration. This was a few days before the husband went into insolvency. But it does not appear that there was any fraud in the transaction, and the deed of the husband to McCarthy recites that the wife had paid the whole amount due on the mortgage to the loan and fund association, and it appears that she also paid the amount due on the mortgage to Crafts and Ward with her own money. It does not appear that the land was of greater value than the amount thus paid for it by her- On the contrary, if the sheriff’s sale was fair, she paid to him, through Crafts and Ward, the full value of the equity of redemption, and was equitably entitled to the land when the mortgage of the loan and fund association was assigned to her husband. The object of the deeds of her husband and McCarthy was to vest in her the legal title, which she ought equitably to have.
It is not stated that her husband had any creditors at the time of the conveyance to her, though his going into insolvency five days afterwards makes it extremely probable that he was then in debt. In the facts stated there is nothing to show that
Judgment for the tenants.