Fishel & Levy v. Motta

• Decision Date: 18 December 1903
• Citation: 76 Conn. 197,56 A. 558
• Court: Connecticut Supreme Court
• Parties: FISHEL & LEVY v. MOTTA et ux.

56 A. 558

76 Conn. 197

FISHEL & LEVY

v. MOTTA et ux.

Supreme Court of Errors of Connecticut.

Dec. 18, 1903.

Appeal from Court of Common Pleas, Hartford Oounty; John Coats, Judge.

Action by Fishel and another against Giovani Motta and wife. From a judgment for defendants, plaintiffs appeal. Affirmed.

Thomas G. Vail, for appellants.

Joseph P. Tuttle, for appellees.

TORRANCE, C. J. in January, 1901, the plaintiffs brought a suit against the defendant Motta, in which they attached whatever interest he then had in the land covered by the judgment lien sought to be foreclosed in the present suit. Subsequently, in April, 1901, they obtained Judgment against him in the attachment suit, and upon that Judgment filed the lien here in question. When the attachment was made, however, the record title to the land attached stood in the name of Motta's wife. The complaint in this case, after alleging that the plaintiffs had thus obtained judgment against Motta in the attachment suit, and had acquired a judgment lien upon the land attached, alleged, in paragraph 5, that Motta, prior to the attachment, had conveyed his interest in the attached land to Ross, who on the same day conveyed his interest therein to Motta's wife, and that "said conveyances were without consideration, and done with intent to avoid the debt owing to the plaintiffs." Paragraph 5 of the complaint was denied in the answer, and whether said conveyances were without consideration, or were made to avoid the debt of the plaintiffs, were really the only contested facts in the case. Upon the facts found the trial court held that these contested facts were not proved, and therefore not true, and the question upon this appeal is, whether it erred in so holding.

The controlling facts are these: In March, 1900, Motta owned an interest in fee in the land in question, and on that day conveyed it to his wife through Ross, as alleged in the complaint. "Ross gave nothing and received nothing on account of said deeds, except such title and interest as was conveyed to him by the husband and immediately reconveyed by him to the wife." The sole purpose of said conveyances was to convey all the interest of Motta to his wife, and it was so understood and intended by all parties thereto. At the time said conveyances were made Motta was indebted to the plaintiffs in the sum of $151, and between that time and June 26, 1900, became further indebted to them in the sum of a little over $60. Said indebtedness remains wholly unpaid. "No other evidence, except such as should be inferred from the foregoing facts, was offered in support of the allegations of paragraph 5 of the complaint."

If the conveyance to the wife was, to her knowledge, made to avoid the payment of the plaintiffs' debt, it was void as to them (Hawes v. Mooney, 39 Conn. 37; Bassett v. McKenna, 52 Conn. 437); or if made without any such purpose, but without consideration, and when the husband was considerably indebted and insolvent, it was void as to the plaintiffs (Redfield v. Buck, 35 Conn. 328, 95 Am. Dec. 241; Paulk v. Cooke, 39 Conn. 566; Quinnipiac Brewing Co. v. Fitzgibbons, 71 Conn. 80, 40 Atl. 913). In the former case it would be void for actual fraud participated in by the wife, and in the latter for what is called, for want of a better name, constructive fraud. Such conveyances are regarded as valid between the immediate parties to them, but void as to creditors; consequently a creditor may for certain purposes, if necessary, treat the land so conveyed as if no conveyance had been made. 1 Swift's Digest, 282.

The complaint in this case...