8 Paige Ch. 161 | New York Court of Chancery | 1840
Lead Opinion
The following opinion was delivered by the vice chancellor on the hearing of the case before him:
The complainants are creditors of Peter Clarke, by judgment recovered on the 21st October, 1831, upon a joint and several bond given by him and James B.. Clarke as his surety, on the 1st May, 1803, conditioned for the payment of $4000. Two thousand dollars of'the debt remains due, and after fi. fa. issued and returned unsatisfied, the hill in this cause is filed, principally for the purpose of setting aside a postnuptial settlement made upon the wife of Peter Clarke, by deed executed by him and her to the defendant Bogardus as trustee, on the 16th December, 1829. The deed purports to convey a large real and personal property which had descended to the wife as one of the heirs at law and next of kin of her uncle John Fisher, who died in 1827. The husband’s estate and interest in the property is now sought to be reached upon the ground that the conveyance is a voluntary one, not founded upon any valuable consideration, and therefore fraudulent and void as against antecedent creditors whose debts remain unsatisfied.
It cannot be denied that a wife, by means of property which she acquires in her own right, may become a purchaser from, her husband ; and a post nuptial settlement of a husband’s property upon his wife and children, based upon an actual purchase made in good faith and for a valuable consideration, will be goo-d against prior as well as subsequent creditors. (10 Vesey, 140. Atherly, 155, 161.)
The deed in question is attempted to be supported upon, the ground of a purchase by the wife for a valuable consid
The doctrine that a voluntary settlement after marriage by a person indebted at the time, is in law presumed to be fraudulent and void against all such antecedent creditors, without regard to the amount of existing debts or the extent of the property settled, or the circumstances of the party, and that no circumstances will permit such debts to be affected by the settlement or repel the legal presumption of fraud, as stated by Chancellor Kent in Reade v. Livingston, as being the result of the English cases, and reiterated by him in Bayard v. Hoffman, (4 John. Ch. Rep. 450,) has undergone some modification since, by the decision of the court of errors in Seward v. Jackson, (8 Cowen, 406.)
To authorize the court to interfere with and declare a voluntary settlement void, even as to creditors whose debts existed when the deed was made, intentional fraud must appear ; and prior indebtedness is but a badge or argument of fraud which may be explained away or repelled by circumstances. A recent decision of the chancellor in Van Wyck v. Seward, which went up by appeal from a decision made, (see 1 Edw. Ch. R. 327,) proceeds upon this principle, and affirms the decree dismissing the bill filed for the purpose of setting aside a voluntary settlement made by a father upon his children, because it was apparent from the circumstances and condition of the father in other respects that he had no intention of defrauding his creditors. But the present case does not call for an inquiry into the motives of Peter Clarke in uniting with his Wife in the conveyance of the property in question to a trustee for her benefit. Although it may be deemed voluntary and debts against him remain unpaid, there are other considerations to be attended to in favor of the wife which distinguishes this from the ordinary case of a husband
Concurrence Opinion
I concur in the conclusion at which the vice chancellor has arrived in relation to the personal property which came from her uncle ; which I think, as between her and the creditors of her husband, she had in equity a right to have settled to her separate use for the support of herself and her children. Independent of the fact that she had previously given up a large portion of her patrimony for the payment of her husband’s creditors, it is not alleged or proved that the personal estate included in this settlement was any thing more than a reasonable support for herself and her children. And as this court would have protected it against the husband and his creditors, if the settlement had not been made, there is no reason for setting aside the settlement which has been voluntarily made without a decree of the court.
I am, however, obliged to dissent from the opinion of the vice chancellor so far as relates to the husband’s interest as tenant by the courtesy initiate in his wife’s real estate. In the case of Van Duzer v. Van Duzer, (6 Paige’s Rep. 366,) upon a review of all the cases on the subject, I arrived at the conclusion that the legal estate of the husband in his wife’s real property as tenant by the curtesy initiate, could not be protected in equity from the claims of his creditors who had a right to sell the same upon their executions at law. And as the debt in the present case existed at the time of this settlement in 1829, and as there is nothing in the case to show that the husband retained to himself sufficient property of his own to satisfy all existing debts or claims for which he was then liable, the assignment of his life estate in his wife’s lands cannot be sustained as against these prior creditors. The decree, so far as relates to that life estate, must therefore be reversed ; and instead of dismissing the bill, the decree must declare the conveyance of the husband’s life estate in his wife’s real property to the defendant Bogardus, to be inoperative and void as against the complainant’s judgment, but that the conveyance of the personal property to the trustee is valid ; and that the conveyance of the real estate in trust is also