Berry v. Berry

• Decision Date: 25 June 1892
• Citation: 24 A. 957,84 Me. 541
• Parties: BERRY v. BERRY et al.
• Court: Maine Supreme Court

24 A. 957

84 Me. 541

BERRY

v. BERRY et al.

Supreme Judicial Court of Maine.

June 25, 1892.

(Official.)

Appeal from supreme judicial court, Oxford county.

Creditors' bill by Hiram W. Berry, as administrator, against Albion K. P. Berry and another. Decree for plaintiff. Defendants appeal. Affirmed.

Hearing in equity on bill, answers, and testimony, a decree in favor of the plaintiff having been rendered by the single justice who heard the cause in the court below.

The bill, after reciting the recovery of a judgment by the plaintiff's intestate at the September term, A. D. 1875, of this court in Oxford county, alleges that on the third day of May, A. D. 1883, the said Albion K. P. Berry contracted for and purchased a farm of John J. Holman, of Dixfield, in the county of Oxford, to wit: The farm on which the said Albion K. P. Berry now resides with his family, etc., for the consideration of twelve hundred dollars, and then and there paid the said John J. Holman the sum of nine hundred dollars for the same farm with his own money, or caused and furnished the money to be so paid, and then and there caused the said real estate to be conveyed by said John J. Holman to said Lizzie T. Berry, who then was, ever since has been, and now is, the lawful wife of said Albion K. P. Berry, with intent to cheat and defraud the said plaintiff in his said capacity of his said debt or judgment, and she, the said Lizzie T. Berry, well knowing the premises, but intending to aid her said husband in so cheating and defrauding the plaintiff, and then having no property of her own, gave her promissory note to said John J. Holman for the sum of three hundred dollars, and a mortgage of said real estate to secure the same, as the balance of the consideration of said purchase. Also, on the tenth day of September, A. D. 1883, a second writ of execution was issued on said judgment, which was put into the hands of Oscar F. Trask, an officer duly qualified to serve the same, who afterwards returned the same into said court in no part satisfied, with his indorsement thereon that he was unable to find any goods or estate of the said debtor in his precinct wherewith to satisfy the same; and whereas your petitioner has no remedy at law by which he can obtain the interest of said Albion K. P. Berry in said real estate to satisfy his judgment and execution, he prays that he may be heard in equity, and that the court will decree a conveyance of so much of said real estate as may be necessary for the payment of said execution and judgment, in case it shall be ascertained that said mortgage is paid, or decree that the right of redeeming the same real estate from said mortgage may be levied upon and sold at auction, and such other relief as the plaintiff may be entitled to in equity. "[Decree] * * *" If the respondents neglect and refuse to pay the plaintiff the amount of said judgment and costs of this suit on or before said first day of August, then a master shall be appointed, who shall appraise and set off to the plaintiff so much of the estate, described in the plaintiff's bill, as will be equal in value to the sum due on said judgment and costs of this suit above the mortgage existing upon said premises; a suitable conveyance from respondents to the complainant to be made, unless an amount equivalent to the amount of the appraisal shall be paid to the complainant, or secured to him, by the respondents, upon...