Hamant v. Creamer

• Decision Date: 27 February 1906
• Citation: 63 A. 736,101 Me. 222
• Parties: HAMANT v. CREAMER.
• Court: Maine Supreme Court

63 A. 736

101 Me. 222

HAMANT

v. CREAMER.

Supreme Judicial Court of Maine.

Feb. 27, 1906.

Appeal from Supreme Judicial Court, Lincoln County, in Equity.

Suit by George D. Hamant against Frank N. Creamer. From a decree for plaintiff, defendant appeals. Affirmed.

Bill in equity, inserted in a writ of attachment, brought to remove a cloud upon the plaintiff's title to certain land in Waldoboro. Omitting the formal parts, the plaintiff's bill is as follows:

First. That he the said complainant is in possession of the following described real estate, situate in said Waldoboro, and bounded northerly by land of the heirs of the late Ossie Creamer and land occupied by Frank A. Miller, easterly and southerly by the Medomak river, westerly by land of heirs of Lewis F. Heavener, containing 45 acres, more or less, said complainant owning two undivided thirds of said property, by title defeasible only by redemption of the sale referred to below, and acquiring his title by virtue of a sheriff's deed of said property, executed, and delivered to him by W. R. Walter, a deputy sheriff of John B. Rafter, sheriff of Lincoln county, said sheriff's deed being so executed and delivered to the complainant pursuant to the execution sale of said property on an execution which issued from our Supreme Judicial Court on a judgment recovered November 3, 1903, by Etta M. Creamer v. Alvin Creamer, said sheriff's sale occurring January 18, 1904, being the date of said deed, under a seizure made December 14, 1903.

Second. That at and prior to the time of the conveyances herein referred to, the said Alvin Creamer now deceased, was the owner in fee simple of the complainant's said two-thirds of said property, the other third being owned by said Etta M. Creamer.

Third. That on the 7th day of December A. D. 1903, the said Alvin Creamer, being deeply involved in debt, by reason of the recovery against him of said judgment in favor of said Etta, the same being a specific sum of $404, In lieu of alimony, and in addition to her dower equivalent, and being apprehensive of said seizure and sale, which were made shortly thereafter as above stated, and being desirous to defeat the intended levy of his said homestead, which comprised the bulk of all his estate, did make a certain transfer and conveyance of all his right, title, and interest in and to said real estate to Frank N. Creamer, the defendant, all of which appears by a certain quitclaim deed, bearing said date of December 7th, A. D. 1903, and recorded in Lincoln County Registry of Deeds, Book 311, at page 294, an attested copy of such record to be here in court produced. Said conveyance was received for record December S, 1903.

Fourth. That said transfer and conveyance of said property was made by said Alvin Creamer for the special purpose of evading the legal effect of said seizure and sale and with the intention of preventing said real estate coming into the hands and possession and ownership of said judgment creditor or of any purchaser acting at her instance. And so the' complainant avers that said transfer to the defendant was a fraudulent conveyance, and its object to hinder, defraud, and delay the creditors of said Alvin.

Fifth. That said Frank N. Creamer, at the time of taking and receiving said transfer and conveyance to him, had full knowledge and sufficient notice of all the facts hereinbefore set forth and co-operated with said Alvin in his intent and purpose as above set forth. And the complainant avers that said conveyance was received by said Frank, as it was given by said Alvin, to defeat the purpose of said levy, and to hinder, delay, and defraud the creditors of said Alvin. And the complainant further says that there was no consideration for said conveyance.

Sixth. That the complainant brings this bill in his own behalf, and that of the said Etta M. Creamer, at whose special instance and request he bid in said property, and whom he represents, or to whose rights he succeeds.

Wherefore the complainant prays:

That the said transfer and conveyance of said Alvin to the defendant be declared by the court to be void. That the defendant be prohibited from exercising any control over said property.

That the defendant be ordered and decreed to make, execute, and deliver to the complainant a sufficient conveyance of said property, to the end that the cloud upon the title of the complainant of said property be removed, that the complainant may hold said property to his own use, and for the benefit of whom it may concern.

And that the complainant may have such other and further relief as the nature of the case may require.

The defendant's answer, omitting formal parts, is as follows:

(1) That said Hamant is not in possession of the premises described in paragraph 1 of his bill, except as tenant in common with the defendant, the said plaintiff either owning the one undivided third part thereof, or acting as agent or representative of Etta M. Creamer named in said paragraph.

The defendant does not know in which of said capacities the plaintiff so occupies, and therefore will require the plaintiff to prove the same. The defendant further denies that the plaintiff has any right, title, or interest whatever in and to the two undivided thirds to which he claims title by virtue of the alleged sale on execution in favor of Etta M. Creamer against Alvin Creamer, and by sheriff's deed as set forth in said paragraph 1.

(2) That Alvin Creamer, on December 7, 1903, was the owner in fee simple of two undivided thirds of the premises described in paragraph 1, and thereafter on the same day for a valuable consideration conveyed the same to the defendant, which the defendant now holds; that on January 18, 1904, the time of the alleged conveyance by Deputy Sheriff W. R. Walter, the title to said two-thirds was not in said Alvin Creamer, but was in the defendant.

(3) The defendant admits that Alvin Creamer on December 7, 1903, conveyed his two-thirds of said premises to him, but denies the fraudulent acts, intent, designs, and purposes as alleged in paragraph 3 of plaintiff's bill.

(4) The defendant denies each and all allegations in paragraph 4 of plaintiff's bill.

(5) The defendant denies each and all the allegations in paragraph 5 of the plaintiff's bill.

(6) The defendant is not informed as to allegations in paragraph 6 of plaintiff's bill, and therefore denies the same, and will require the plaintiff to prove the same, if true.

Wherefore the defendant prays that the plaintiff's bill may be dismissed with costs.

At the hearing on bill, answer, and proofs, the justice of the first instance, after making a finding of facts, which is sufficiently stated in the opinion, issued the following decree:

"Ordered, adjudged, and decreed that the bill be sustained, and that the conveyance from Alvin Creamer to the defendant of two-third parts in common and undivided of the premises described in the bill was fraudulent and void as against Etta M. Creamer, in whose favor the execution was issued which was levied upon said premises, and cannot be set up to defeat the title of the complainant acquired at a sheriff's sale on January 18, 1904, and that the complainant has good title to two-third parts of said premises.

"Said defendant is perpetually enjoined from asserting any title to said premises under said deed from Alvin Creamer, or from in any manner doing any act prejudicial to the title thereto of this complainant.

"And it is further ordered that the defendant make, execute, and deliver to complainant within 30 days from entry of this decree, a good and sufficient release and discharge of all his right, title, and interest in said two-third parts of said premises.

"And that complainant have and recover of the defendant the costs of this suit, for which execution is to issue."

Thereupon the defendant appealed.

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE. SAVAGE, POWERS, and SPEAR, JJ.

O. D. Castner, for plaintiff. Wm. H. Hilton, for defendant POWERS, J. Appeal by the defendant in a bill in equity, brought to remove a cloud upon the plaintiff's title to certain real estate in Waldoboro. By the decree the plaintiff was enjoined from asserting any title to, and ordered to release to the plaintiff all bis interest in, two-third parts of the premises. The evidence is not reported, but instead thereof the facts found by the justice who heard the case, and which, as far as material to the grounds relied upon to sustain the appeal, are as follows:

"At the October term of this court, 1903, for Lincoln county, and on the 3d day of November, 1903, a divorce from the bonds of matrimony was decreed to Etta St. Creamer from her husband, Alvin Creamer, and there was decreed to her in addition to one-third interest in the real estate of said Alvin Creamer, that instead of alimony said Alvin Creamer should pay her the sum of $400 within 30 days from the date of the decree. In default of payment, execution to issue therefore. The libel for divorce was inserted in a writ of attachment, on which real estate was attached on March 13, 1903. Payment of the $400 not being made, execution issued on the 10th day of December, 1903, in which the officer was commanded to collect interest from the date of the decree, instead of from 30 days thereafter, the time of payment provided therein.

"Upon the execution the officer seized, on December 14, 1903, the whole of the estate described in the bill, instead of two-third parts thereof owned by Alvin Creamer, as the date of the attachment, the lien of which had expired before the execution was issued, or the seizure made. Under this seizure the officer proceeded in accordance with the statute to advertise and sell the estate, and did sell the whole land on the 18th day of January, 1904, to the complainant, and gave him a sheriff's deed of the same. No objection is made to the formality of these procedings, leading up to the sale, except that he sold the...