Bresnihan v. Sheehan
| Decision Date | 27 June 1878 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | Timothy Bresnihan v. John Sheehan & another |
Argued January 25, 1877
Norfolk. Bill in equity, under the Gen. Sts. c. 113, § 2, against John Sheehan and Ellen Sheehan, his wife. Ellen Sheehan demurred for want of equity. Hearing upon the bill and demurrer, before Ames, J., who reserved the case for the consideration of the full court. The facts appear in the opinion.
Demurrer overruled.
E. C Bumpus, for Ellen Sheehan.
W. E Jewell, for the plaintiff.
Under our statute, a creditor may maintain a bill in equity to reach and apply in payment of his debt any property, right, title or interest, legal or equitable, of a debtor which cannot be come at to be attached or taken on execution. Gen. Sts. c. 113, § 2, cl. 11. A creditor may thus reach the equitable assets of his debtor, without having exhausted his remedies at law or reduced his claim to a judgment. Tucker v. McDonald, 105 Mass. 423. He may enforce in his own name and for his own benefit, to the extent of his interest as creditor, the equitable title of his debtor to any property, real or personal, within the jurisdiction of the court, which cannot be taken on execution.
This bill is brought against husband and wife by a creditor of the husband. The plaintiff alleges that the husband deposited all his wages with the wife for safe keeping; that the latter, without the husband's knowledge, deposited the same in a savings bank, from time to time, and, without his knowledge or assent, used the amount so deposited, together with some money she had borrowed on her sole credit, in payment for certain real estate, the title to which she took and still holds in her own name. It is not alleged that this was done by the wife with any purpose on her part of aiding her husband to delay or defraud his creditors.
The prayer of the bill is that the property of the husband, thus appropriated by the wife, may be applied to the payment of the plaintiff's debt, and, to that end, that the land may be conveyed to a receiver to sell the same or so much of the same as may be necessary.
In support of the demurrer, it is contended that the plaintiff has no remedy against the land in question, either at law or in equity. It is clear that the land cannot at law be attached, taken on execution, as the property of the husband. It has been recently decided that when land was conveyed to the wife which was paid for in part by the husband and in part by the wife, without any participation by the latter in the fraudulent intent of the husband to defraud his creditors, the same could not be reached under the Gen. Sts. c. 103, § 1, which authorize a creditor to levy on land fraudulently conveyed or paid for by the debtor the record title to which is in another. In the case referred to, the debtor, with a purpose to defraud his creditors, paid part of the purchase money, and his wife innocently paid the rest and took the title in her own name. It was held that the equitable interest of the debtor, if any, which arose from his part payment of the purchase money, could not be reached by the levy of an execution. Snow v. Paine, 114 Mass. 520.
Nor, upon the facts alleged, does this land come within the other description named in the statute last cited, namely, that of land purchased, or directly or indirectly paid for, by the debtor, the title to which is conveyed to a third person, on a trust for him, express or implied, whereby he is entitled to a present conveyance. A resulting trust is not created in favor of one who pays directly or indirectly part of the purchase money for land conveyed to another, unless such payment is made for some specific or distinct portion of the estate. McGowan v. McGowan, 14 Gray 119. Snow v. Paine, above cited. The money here appropriated by the wife was used with her own money, in a general payment towards the entire purchase, and the husband was not entitled, at law or in equity, to a present conveyance of the whole or of any distinct or aliquot portion of the whole.
The plaintiff's claim is that the husband has an equitable interest which may be reached and applied, under the statute first cited, by a decree in his favor. The money of the husband was deposited with the wife for safe keeping; she held it as bailee in trust for him. It was a breach of that trust, and a fraud upon him, for her to use it without his knowledge in the purchase of real estate, and he has...
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