137 A. 385 | R.I. | 1927
Heard on appeal from a decree of the Superior Court declining to set aside a deed from a husband to his wife. The conveyance is asserted to have been *272 made with intent to hinder, delay or defraud complainant, a creditor of the husband at the time of the conveyance. G.L. 1923, Chap. 297, Sec. 1. Credit had been given on the strength of the husband's ownership of the real estate conveyed.
The bill was brought against the wife, Teresa Madigan, She subsequently secured a decision for divorce. Her husband's whereabouts are unknown. Although the bill alleges a conveyance of all of the husband's property while insolvent, it does not aver that the conveyance was made without consideration and rely upon constructive fraud irrespective of moral turpitude.Matthews v. Thompson,
Whatever may be the merits of respondent's defence against an inference of constructive fraud arising from the voluntary conveyance by her husband, her explanation clearly was evidence to be weighed against complainant's charge of improper solicitation, bad faith and conspiracy on her part. On this conflict of testimony the trial court found that actual fraud by respondent had not been proven and pursuant to our long established rule dismissed the bill. No error was committed in so doing. Complainant having failed to prove actual fraud no other questions were properly before the court. Grant v. Wilcox,
The decree entered should be modified to provide only for dismissal of the bill without prejudice to complainant's right to seek relief upon other grounds than a charge of actual fraud against respondent.
The cause is remanded to the Superior Court for the entry of a decree in accordance with this opinion.