Bush v. Boutelle
| Decision Date | 31 March 1892 |
| Citation | 30 N.E. 607,156 Mass. 167 |
| Parties | BUSH v. BOUTELLE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
E.P. Pierce and J.A. Stiles, for petitioner.
W.S.B Hopkins and C.E. Ware, for defendant.
The question in this case is whether the deeds from Cyrus F Boutelle to the defendant were given in contravention of the insolvent law. It is stated in the agreed facts that at the time the defendant took them, and when the loan was made for which they were given to him as security, Cyrus was insolvent, and knew himself to be so, and the defendant had reason to believe him to be so. It is not stated that the deeds were taken or the money advanced by the defendant with a view to enable Cyrus to prefer the bank, or to evade in any way the insolvent law. That is denied in the defendant's answer. We understand the question, therefore, to be whether on the agreed facts as they stand, without anything more, the deeds, as matter of law, were in contravention of the insolvent act. It appears from the agreed facts that Cyrus had a note coming due at a bank in Fitchburg. The day before it fell due the indorsee declined to renew it. Cyrus therefore applied to the defendant, saying that the action of the indorsee put him in a tight place, and asking him to get the money for him on his (Cyrus') note, and saying he would give him security on the lots, naming them, either by mortgage or warranty deed. Instead of getting the money in the manner Cyrus suggested, the defendant himself advanced the money, and kept the note, which was dated April 10, 1889. Owing to his absence at Worcester as a witness, and by reason of other pressing business, Cyrus was unable to complete the transaction till April 23d, when he made and delivered as security to the defendant warranty deeds of the two lots. The petitioner claims that the arrangement between the defendant and Cyrus contemplated the giving of security at a future time, and not as a part of or contemporaneous with the lending of the money, and that when the defendant received the deeds he took them as an unsecured creditor, receiving security for an unsecured debt. We do not think the transaction can be so regarded. The proposal to give security was made at the same time as and as part of the request for the loan. It was made before the money was lent, and to induce the lending of it, and the money was lent, for aught that appears, in good faith, on the promise of the security. The only reasonable construction to be given to the letter of Cyrus is that it was expected and intended by the parties that the lending of the money and the giving of the security would be contemporaneous, and that Cyrus understood that he was to give, and the defendant that he was to receive, present security for a present loan. The accidental delay could not affect the real character of the agreement, or of what was done. The situation of the debtor remained unchanged, and there is nothing to show that the delay was for the purpose of giving credit. When the security was given, equity would treat it on the principle that a thing is considered done at the time when it ought to have been done, as if it had been given at the time agreed; and even at law, possibly, the interval might be disregarded, and the agreement and the giving of the deed be regarded as contemporaneous. Gardiner v. Gerrish, 23 Me. 46; 1 Story, Eq. § 649; Hawks v. Locke, 139 Mass. 205, 1 N.E. 543; Com. v. Devlin, 141 Mass. 423, 431, 6 N.E. 64; Cartwright v. Wilmerding, 24 N.Y. 521, 533, 534; Nickerson v. Baker, 5 Allen, 142.
The cases relied on by the petitioner on this branch of the case are readily distinguishable from this case. In Blodgett v. Hildreth, 11 Cush. 311, the agreement to give security was clearly executory, and at the time the security was given there was clearly an antecedent debt. In Forbes v. Howe, 102 Mass. 427, a former mortgage was surrendered, and a new one taken on other property to secure a debt that had existed some time. The second mortgage was clearly invalid. The same is, in substance, true of Simpson v. Carleton, 1 Allen, 109. Holmes v. Winchester, 135 Mass. 299, is the strongest case cited by the petitioner, but the conveyance which was the subject of controversy was not made till two years and four months after the time when it should have been made. The court expressly said that the evidence was "consistent with the view that she [the plaintiff] did not expect a present conveyance from her husband, but left it to be made by him at some time in the future." The case of Copeland v. Barnes, 147 Mass. 388, 18 N.E. 65, stands on the same ground in effect as Forbes v. Howe, supra; as does Paine v. Waite, 11 Gray, 190. On the other hand, we think the view which we have taken is supported by numerous authorities. Williams v. Coggeshall, 11 Cush. 442; Nickerson v. Baker, 5 Allen, 142; Holmes v. Winchester, 133 Mass. 140; Parsons v. Topliff, 119 Mass. 245; Atlantic Nat. Bank v. Tavener, 130 Mass. 407; Stetson v. O'Sullivan, 8 Allen, 321; James v. Newton, 142 Mass. 366, 8 N.E. 122; Tiffany v. Savings Inst., 18 Wall. 375; Cartwright v. Wilmerding, 24 N.Y. 521; Ex parte Ames, (In re McKay & Aldus,) 7 N.B.R. 230;...
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