Carpenter v. Cushman

Morton, J.

At a former stage of this case, it was adjudged that the defendant’s testator held the land in question charged with a trust in favor of the plaintiffs ; and thereupon a decree was entered that the case be referred to a master to state an account, “ and what, upon the balance of said account, shall be certified due to the said defendant (if anything) it is ordered and decreed that the said plaintiffs do pay the same unto the said defendant within such time as the court shall order after the said master shall have made his report, at such time and place as the court shall appoint; and that thereupon the said defendant do release and convey to the said plaintiffs, or unto such person or persons as they shall appoint, the premises free and clear of all incumbrances done by him or his said testator, or any person claiming by, through or under him, or either of them.” Carpenter v. Cushman, 105 Mass. 417 .

The master, the case having been twice recommitted to him, has made a final report, in which he finds, as the result of the statement of the account, that a small balance is due to the plaintiffs ; and the plaintiffs now move for a final decree in accordance with the report of the master. The defendant objects to this, and moves to dismiss the bill, upon the ground that the bill alleges that the judgment and real estate therein mentioned were conveyed to the defendant’s testator by the plaintiffs, for the purpose of defrauding their creditors, and that, therefore, upon their own showing, they are not equitably entitled to the relief they seek.

There are two answers to the defendant’s position. The former decree, though not technically final, is a decree adjudicating that the defendant shall release and convey to the plaintiffs the land in question. It is too late for the defendant to make the objection that the plaintiffs are not entitled to the relief they seek. Their right to a reconveyance is res adjudicata.

Another answer is that' the bill does not, by necessary construction, allege any fraud on the part of the plaintiffs, which would enable their creditors to avoid the assignment of the judgment and the subsequent deed to the defendant’s testator, or which would debar them from the relief sought, if the question had been raised in due season. The allegations, that the assignment of the judgment and the deed of the land were made to *267 Cushman, for the purpose of securing the debts due to Cushman and Coffin, and for the purpose of preventing other creditors from attaching and seizing any real estate that might be taken under the execution which might issue upon such judgment, do not necessarily import that the plaintiffs had an illegal intent to hinder, delay and defraud their other creditors. They are equally consistent with an intent merely to give Cushman and Coffin a preference over their other creditors. The necessary effect of any transfer to one creditor is to prevent other creditors from attaching the property transferred, and the intent thus to prevent them is not an illegal intent.

The only other question presented by this report, which has been argued by the defendant, is that raised by his third exception to the master’s report. This exception is, in substance, that the master has charged the defendant with rent, without proof of any rents actually received, or use actually had of the premises. Waiving any questions as to the regularity of taking and filing the exception, it is clear that this exception cannot be sustained. It assumes that the master had no proof that rents were received, or that the defendant’s testator occupied or used the premises. These facts do not appear in the master’s report, and the evidence upon which he based his findings is not reported. Decree for the plaintiffs.