Clark v. Mcmahon

• Decision Date: 06 January 1898
• Citation: 48 N.E. 939,170 Mass. 91
• Parties: CLARK et al. v. McMAHON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

170 Mass. 91

48 N.E. 939

CLARK et al. v. McMAHON et al.

Supreme Judicial Court of Massachusetts, Worcester.

January 6, 1898

COUNSEL

C.G. Bancroft, for demandants.

T.F. Larkin, for defendants.

OPINION

MORTON, J.

In Deshon v. Wood, 148 Mass. 132, 19 N.E. 1, on which the plaintiff relies strongly, the conveyance appears to have been not only voluntary, but to have been made by the husband with intent to defraud his creditors. At least, that is the form in which the question is stated in the dissenting opinion, and there seems to have been no objection to that form of statement by the majority of the court. In the present case there is no finding of a fraudulent intent on the part of the husband. The case of Deshon v. Wood, is not, therefore, decisive of this; and we may assume (as that case seems to hold) that, if there had been a fraudulent intent on the part of the defendant's husband, the wife's ignorance of it, or of the fact that he was largely indebted, and that the conveyance rendered him insolvent, would not avail her. We may also assume that, as matter of law, the conveyance was a voluntary one. But it is well settled in this commonwealth that a voluntary conveyance, "made on a meritorious consideration, of blood or affection, to a child, or as a settlement to a wife, is not, as matter of law, fraudulent and void as to existing creditors." Cook v. Holbrook, 146 Mass. 66, 14 N.E. 943; Draper v. Buggee, 133 Mass. 258; Winchester v. Charter, 12 Allen, 606; Lerow v. Wilmarth, 9 Allen, 382, 386. If made by a person deeply indebted, it may furnish strong presumptive evidence of fraud. But whether it is fraudulent or not is a question of fact, depending on all of the circumstances of the case. In the absence of any finding of fraud on the part of the husband, we do not see how the conveyance can be held, as matter of law, to be void as to creditors. According to the report, the entry must therefore be, "Judgment on the finding." So ordered.