Bailey v. Bailey

Peters, J.

The defendant and plaintiff wore formerly husband and wife. The plaintiff obtained a divorce from her husband, and the possession and use of the real estate in question was, by a decree of court granting the divorce, set out and assigned to her as alimony. Prior to her petition for divorce the defendant conveyed the premises to his father, and since tho divorce the father conveyed the same back to the defendant, who afterwards conveyed them to one Phineas P. Jackson, who thou conveyed them to the present wife of the defendant, lie having married again since the divorce was granted.

The judge at nisi prius ruled that, if the estate was conveyed to James Bailey, the father, to prevent the plaintiff from enforcing such decree of alimony or other aid as might be awarded her, in case she should prefer a libel against him, such conveyance was fraudulent and void as between the plaintiff and the defendant. *364 The defendant contends that a person in the situation of die plaintiff could not be regarded as a creditor, so as to come within the Statutes of Elizabeth relating to fraudulent conveyances. But the Stat. of 13 Eliz., c. 5, was passed “for the avoiding and abolishing of feigned, covinous, and fraudulent feoffments, gifts, grants, alienations, convej’ances, bonds, suits, judgments, and executions, devised and contrived of malice, fraud, covin, collusion, or guile, to the end, purpose, and intent to delay, hinder, or defraud creditors, and others, of their just and lawful actions, sujts, debts, accounts, damages, penalties, forfeitures, heriots, mortuaries, and reliefs.” In Livermore v. Boutelle, 11 Gray, 217 , in a case similar to the present, the court say, “ If she was not a creditor, she was of the others whose just and lawful actions, suits, and reliefs would be delayed, hindered, or defeated by such conveyance.”

As in the case at bar it does not appear that the cause of divorce existed before the conveyance by .the defendant to bis father, and as it does not appear but that the father paid a full and adequate consideration for the premises conveyed, the plaintiff would be in a no more favorable position than that of a subsequent and not an existing creditor; and this presents the question whether a conveyance, though for a full and adequate consideration, may or not, if made for fraudulent purposes, be void as to creditors who become such subsequent to the date of such conveyance. While it has been in a general way stated in cases in this State, as in Howe v. Ward, 4 Maine, 196, and Clark v. French, 23 Maine, 221, that a conveyance for a valuable and adequate consideration, if fraudulent, may be avoided by creditors who were such at the time of convej'ance, but not by subsequent .creditors, the doctrine thus stated had relation to the class of cases where the fraudulent intent was of a general character only, and would have no application where by means of such a conveyance a fraud was particularly and expressly meditated against a subsequent creditor. While, if nothing appeared to the contrary, such a conveyance, if made with bad faith, would be presumed to be *365 aimed only at present and existing creditors, still where it affirmatively appears to be aimed at a person -with an expectation that he may become a creditor, the Statutes of Elizabeth can be invoked by such person for his protection so as to render the transaction void. Hall v. Sands, 52 Maine, 355; 11 Gray, ubi supra. See 11. S., c. 126, § 3, which has a significant application in this connection.

It is easy to conceive of cases — and this case is a clear illustration of it — where a person in making a conveyance would have a particular design to injure a subsequent creditor only, and have no motive or intent to injure or defraud any one else.

Inasmuch as the conveyance was void as far as the defendant was concerned, it became immaterial whether his first grantee participated in the fraudulent intent or not, for when the premises were purchased back by the defendant there was no party left but himself to contend for their possession against the plaintiff, and as seen from the foregoing he was in no position to do so.

It is suggested, inasmuch as James Bailey, the grantee, received the conveyance without a participation upon his part in any fraud, that he would bo legally authorized to pass a valid title of the premises to any other person : and that he might be deprived in some degree of the value of such premises if he was not permitted to convey such a title to the defendant himself. The answer is, that Janies Bailey could convey such a title to the defendant, but that the defendant receiving it would be estopped from holding the premises in any other way than for the benefit of the plaintiff, so far as her claim was concerned. The defendant not only could, but very properly should, be allowed to purchase back the premises. He would thus rescind the conveyance first made and purge the fraud he had thereby committed. The conveyance afterwards, without consideration, could have no effect against a previous decree of the court. The defendant, although in a condition to purchase and receive, is not able to retain, any more than would a grantee of premises, who, before receiving title, had conveyed by a warranty deed. In the one case the title *366 would go where the grantee covenants he had placed it, and in the other where it is ascertained to belong by the solemn decree of a judicial tribunal. It does not follow that James Bailey’s right to the premises is lessened in the least degree, because, upon reconveyance to the defendant, the grantee cannot hold the title for his own benefit, any more than such a result would follow because a person could not purchase the land of him for his own use, for the reason that his insolvent condition and consequently his liability to the suits and attachments of creditors might render it impracticable to do so.

This process could as well be maintained against the defendant, who was acting as agent of his wife, as against her, if he was guilty of a wrongful and forcible entry or detainer, either or both. Woodman v. Ranger, 30 Maine, 180. And if he justifies his possession under a third person, the burden is on him to prove such third person’s title. Hogan v. Harley, 8 Allen, 525 .

Exceptions overruled.

AppletoN, C. J.; Cuttikg, Dxckeeson, DaNFOkth, and ViegiN, JJ., concurred.