151 Mass. 132 | Mass. | 1890
It was contended on behalf of the defendants, at the argument before us, that this court should look at the evidence independently of the findings by the judge of the Superior Court, inasmuch as only one witness, namely, the defendant Chamberlayne, appeared personally before him, and the case was decided almost wholly upon certain facts which were agreed, and upon a stenographic report of testimony taken before another judge. Upon an examination of the testimony and agreed facts, we are brought to the conclusion that the decree entered in the Superior Court was right.
The plaintiff was a creditor of Mrs. Hammond. He held three notes signed by herself and by her husband. She was the owner of the real estate now in controversy. The record title stood in her, and the circumstances under which she took that title negative any resulting trust in her husband. Whitten v. Whitten, 3 Cush. 191. Edgerly v. Edgerly, 112 Mass. 175. Cormerais v. Wesselhoeft, 114 Mass. 550. It is stated in the answer of Mr. and Mrs. Hammond, that she took the title upon a secret trust in his favor, but the evidence does not support this averment. Moreover, so far as the plaintiff is concerned, the husband could assert no right or claim, because he expressly assured the plaiátiff that she owned the property, and thereby induced the plaintiff to lend his money upon Mrs. Hammond’s credit as such owner. At first, the plaintiff was to have a mortgage from her; but he contented himself with taking into his
Soon afterwards, Mr. and Mrs. Hammond gave to one Smith a note for eight hundred dollars secured by a chattel mortgage executed by Hammond, and a mortgage of the real estate executed by Mrs. Hammond. Soon after doing this, Hammond, being insolvent, made a voluntary assignment of his property for the benefit of his creditors to the defendant Chamberlayne. A few days after this, Mrs. Hammond, knowing the facts, conveyed the real estate to Chamberlayne, without any valuable consideration. It abundantly appears by the evidence, that both she and Chamberlayne intended by this means to prevent the property from being reached by the plaintiff, who, with the exception of Smith, was perhaps her sole creditor, she however being unacquainted with business, and not fully appreciating the nature of what she was doing.
It was contended at the argument, in behalf of the defendants, that Chamberlayne in reality took this deed for the benefit of Hammond’s creditors, though no mention of this was made in the deed itself. There was no evidence in direct support of this contention. Chamberlayne himself testified that he stated to Hammond’s creditors at their second meeting, which was nine days after the deed to him was given, that he held a deed of Mrs. Hammond's real estate, subject to legal claims, and that he would make a declaration of trust in the same if the creditors wished it. There was other evidence which led the judge of the Superior Court to find that this disclosure was made at a later date. But if we assume, as we are content to do, that the disclosure was made at the earliest practicable time, and that the deed was taken at the outset by Chamberlayne with the purpose of holding it in trust* for the benefit of Hammond’s creditors, this does not relieve the stress of the situation. Mrs. Hammond was not liable for her husband’s debts to his general creditors, and she was liable to the plain
The purpose with which her deed was given and received was to hinder, delay, and defraud her creditor, the plaintiff, by putting it out of his power to reach her property by legal process. It was done under the advice of counsel; one note of the plaintiff would fall due within seven days, and another within twelve days; she had no other property; and upon the evidence there is no doubt that such was the object of the transaction. It is á question of fact; but upon the clear facts, the transaction was one which the law stamps as a fraudulent conveyance; that is, a conveyance made with intent to hinder, delay, and defraud creditors. Winchester v. Charter, 12 Allen, 606. Cook v. Holbrook, 146 Mass. 66. Bernard v. Barney Myroleum Co. 147 Mass. 356, 359.
The attachment by the plaintiff was therefore valid, under the Pub. Sts. c. 161, § 66, and gave to him a lien upon the property, and entitled him as an attaching creditor to redeem the land from the mortgage to Smith. Briggs v. Davis, 108 Mass. 322. May v. Gates, 137 Mass. 389. Smith held security upon the personal property covered by his chattel mortgage, as well as upon the real estate. It was found by the judge as a fact, that the property included in the chattel mortgage was more than sufficient to pay the debt secured by the two mortgages. The plaintiff under his attachment could resort only to the real estate. He was thus entitled in equity to require Smith to exhaust the personal security first, or, upon payment by him to Smith of the amount of his debt, to be subrogated to his right to enforce the security in the first instance upon the personal property. King v. Nichols, 138 Mass. 18, 21. And see numerous cases cited in Sheldon on Subrogation, § 61.
The defendant Warren, the present holder of Smith’s mortgages, is bound by the same equity.' He certainly in this respect stands no stronger than his assignor.
It is now contended, however, that Warren has another and a distinct equity, growing out of the fact that he holds by assignment from Smith another note of Hammond, for one thousand dollars, secured by a separate mortgage of personal property, consisting of a planing-mill and machinery placed upon the
It thus becomes very plain that Warren has acquired no equity superior to that of the plaintiff. The mortgage to
Decree affirmed.