Lamb v. Smith

Field, J.

As the attachment made by Oliver was prior in time to that made by the demandant, Oliver’s right to the land, if it were subject to his attachment, was superior to that of the demandant. It was contended at the argument that, by a proper construction of the report, it appeared that the tenant and her husband bought Oliver’s right to the land and his writ of entry with the husband’s money; and that the conveyance by deeds of quitclaim made through Lunt to the tenant was in fraud of the husband’s creditors. The tenant denied that it appeared by the report that the purchase was made with the husband’s money. If it were assumed that the quitclaim deeds from Oliver to Lunt and from Lunt to the tenant conveyed any legal title to the land, and that this title was paid for by the husband and fraudulently conveyed to the tenant, it would become important to ascertain whether the levy made by the demandant was before or after the new title vested in the tenant ; because, if made after, it would attach to the land as held under this new title, even although the attachment made by the demandant had been defeated by the levy and sale under Oliver’s attachment followed by the judgment rendered for him *578 in his writ of entry. It seems, however, that these quitclaim deeds, having been delivered before Oliver had obtained judgment in his writ of entry, and while the tenant was in possession of the land, claiming title thereto, conveyed no legal title to the land. Hunt v. Mann, ante, 53. But we are satisfied that such is not the true construction of the report; and that none of the questions that would arise if the demandant had relied on any other right of action to recover the land than that which had its foundation in the attachment made by him in his action against the husband, was raised before the justice who heard and reported the case.

The demandant in this writ of entry must recover, if she recover at all, on the strength of her own title. If the judgment obtained by Oliver in his writ of entry is valid as against this demandant, then it defeats her right of action, and it is immaterial whether the title still remains in Oliver, or has been conveyed to the tenant; and, if' conveyed to her, it is immaterial with what intention the conveyance was procured or made. The demandant must therefore impeach the validity of this judgment; and, in general terms, he offers to show that Oliver’s writ of entry was fraudulently purchased by this tenant and her husband, and that thereafter judgment for the demandant was fraudulently entered therein on default, for the purpose of defeating the creditors of the husband, of whom this demandant is one.

That a stranger to a judgment which injuriously affects his rights of property can avoid it, so far as it affects him, by pleading and proving in any action to which he is a party that the judgment was obtained by fraud and collusion between the parties to it, has been often decided. But the demandant does not offer to show that Oliver’s right of action for the recovery of the land was fictitious or invalid, or that the judgment rendered for him on his writ of entry was not a just judgment, and such as ought to have been rendered. The issues in that action were whether the land, the legal title to which was in the tenant, was not subject to be taken in satisfaction of the debts of her husband, and whether it had not been actually so taken by the levy of the execution issued on the judgment which Oliver obtained in his action against the husband.

*579 It is found in the report, that “ the demandant admitted that the said attachment and levy and writ of entry of said Oliver were valid and regular, and that all the proceedings of said Oliver against said tenant and said E. W. Smith were regular and valid up to February 1, 1879, when said assignment and agreement were made.” This is an admission that the land was liable to be taken on execution to satisfy the debts of the husband, and had actually been so taken on the execution obtained by Oliver. But, if it were possible that the tenant’s title was good against Oliver, as one creditor of her husband, and bad against the demandant, as another creditor, it was not this which the demandant offered to prove; and offering to prove that the tenant and her husband colluded with Oliver to enter such a judgment on his writ of entry as ought to have been entered, and to have the same and the title obtained thereby conveyed to the tenant with intent to defraud the creditors of the husband, is offering to prove what, if it can be called collusion, was collusion which worked no injury to the demandant, and only accomplished what, so far as the rights of the demandant are concerned, would have been accomplished if Oliver had duly prosecuted his writ of entry to judgment, or if the tenant had yielded possession to him without suit. Taking the offer of the demandant most favorably to him, it was an offer to prove fraud without damage. The demandant’s offer of proof therefore lacked elements necessary to constitute fraudulent collusion to her injury. If the tenant had yielded possession to Oliver after he became the purchaser at the sale under the execution he obtained against the husband, it would not have been necessary for him to bring a writ of entry. Gen. Sts. c. 103, § 48. Wellington v. Geary, 3 Allen, 508 .

If it be assumed that the demandant’s attachment was not of necessity wholly defeated by the sale under the levy of the execution obtained by Oliver, upon which we express no opinion, still in any writ of entry which the demandant might bring against Oliver, if the tenant had yielded possession to him, the demandant must show that Oliver took nothing by the purchase under his levy. But the demandant not only has offered no evidence to prove that Oliver did not acquire a right to the land by this purchase, but she concedes that he did acquire such a *580 right; and a consent by the tenant to a judgment for Oliver in his writ of entry is no more a fraud on this demandant, than the tenant’s yielding possession of the land to Oliver without suit would have been a fraud on this demandant. The entry must be Judgment on the verdict.