Holmes v. Winchester

• Decision Date: 07 September 1883
• Citation: 135 Mass. 299
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Francis M. Holmes & others v. Sarah W. Winchester

135 Mass. 299

Francis M. Holmes & others v. Sarah W. Winchester

Supreme Court of Massachusetts

September 7, 1883

Argued October 6, 1882

Worcester. Writ of entry, by the assignees in insolvency of George C. Winchester, to recover an undivided half of certain real estate in Fitchburg. Trial in the Superior Court, before Knowlton, J., who allowed a bill of exceptions, in substance as follows:

There was evidence tending to show the due appointment of the demandants as assignees of George C. Winchester upon adverse proceedings commenced against him on September 1, 1879, by his creditors, and the assignment of his estate to the demandants in January, 1880.

It appeared that the real estate demanded was conveyed to George C. Winchester in 1868; that the same was sold on December 2 1876, upon an execution, which duly issued on a judgment against George C. Winchester, and was purchased at the sheriff's sale by one J. F. Litch, who bid off the same at the request of Winchester, and was furnished by him with the necessary money to pay for the same; that said estate was duly conveyed by the officer on December 12, 1876, to Litch who retained the title until April 14, 1879, when, at the request of Winchester, he executed a deed of the same to the tenant, who was, and for a long time prior thereto had been, the wife of George C. Winchester.

There was also evidence tending to show that said deed was delivered to the tenant on or about April 14, 1879; that the same was entrusted by her to her husband to have it put on record, but that it was not recorded until September 1, 1879; that on said April 14, 1879, George C. Winchester was insolvent; that the tenant had reasonable cause to believe him insolvent; and that such conveyance was made in fraud of the laws relating to insolvency.

It further appeared that, on December 1, 1876, the tenant, who was then the wife of George C. Winchester, joined with him in a mortgage upon his real estate for the sum of $ 77,500, in release of dower; and there was evidence tending to show that, in consideration of her thus releasing her dower, and to induce her to execute said mortgage, George C. Winchester agreed to convey to her the land demanded, and certain other real estate, none of which was covered by said mortgage.

It was agreed at the trial that the value of the real estate so to be conveyed to her was only a fair equivalent for the release of dower aforesaid.

No claim was made that at the time of this agreement George C. Winchester was not solvent. The mortgage is still outstanding and the mortgage debt unpaid.

There was also evidence tending to show that the conveyance by Litch to the tenant was to complete and carry out the above agreement of George C. Winchester, and was also for the purpose of effecting a fraud upon the insolvency laws.

It also appeared that, up to that time, nothing had been done in execution of said agreement, and that the other real estate therein referred to was never afterward conveyed.

The tenant asked the judge to rule that, if the jury found that the tenant, in 1876, at a time when her husband was solvent, released dower in certain real estate of his, in consideration of his agreement to convey the specific property in suit to her, and if the value of the property so agreed to be conveyed by her husband was only a fair equivalent for her dower interest released, and if, subsequently, the conveyance from her husband through Litch to the tenant was made to perfect and carry out said agreement, such conveyance would be valid, even though the tenant's husband was insolvent at the time of such conveyance, and the tenant had reasonable cause to believe him insolvent.

The judge declined so to rule; but left it to the jury to determine, under full instructions, whether the conveyance from Litch to the tenant was void, as against the assignees of George C. Winchester, either as fraudulent at common law, or as a fraudulent preference under the insolvent law of a person having a claim against him, or as a fraudulent conveyance of his property with a view to preventing its being distributed under the insolvency laws of this Commonwealth; and gave no instructions relating to the matter set forth in the tenant's request, except to rule that the facts therein set forth, if proved, would constitute a good consideration for such conveyance at common law.

The jury returned a verdict for the demandants; and the tenant alleged exceptions.

Exceptions overruled.

F. A. Gaskill, for the tenant.

S. Hoar, for the demandants.

Field, J. Colburn & Holmes, JJ., absent.

OPINION

Field, J.

Proceedings in insolvency were begun against George C. Winchester on September 1, 1879. The deed was delivered to the tenant on or about April 14, 1879, and was recorded on September 1, 1879. The conveyance of the land was therefore made within six months of the filing of the petition. Gen. Sts. c. 118, §§ 89, 91. The conveyance was made by Litch at the request of George C. Winchester, in whose favor Litch held the land on a resulting trust. On December 1, 1876, the tenant, at the request of her husband, George C. Winchester, released her dower in real estate, then mortgaged by him to other persons; and, in consideration of this release, he promised that he would convey to her the land demanded, and other property, all of which was only a fair equivalent for the release of dower. No claim was made that, at the time of this promise, George C. Winchester was not solvent; and the mortgage is still outstanding. There was evidence that, at the time of the conveyance, George C. Winchester was insolvent, and procured the conveyance to be made, not only for the purpose of performing his promise, but also for the purpose "of effecting a fraud upon the insolvency laws;" and there was also evidence that the tenant had then reasonable cause to believe that her husband was insolvent, and that the conveyance was made "in fraud of the laws relating to insolvency."

This case is like Holmes v. Winchester, 133 Mass. 140, except that it is an action at law, and not a suit in equity, and the property in dispute is real, and not personal, property. As the tenant has in form the legal title, she can set up in support of it any equities that will avail her. The conveyance was made upon an executed consideration which must be regarded as valuable, and it is assumed that the agreement between husband and wife was oral. Until the decision in Holmes v. Winchester, ubi supra, it had never been declared or decided in this Commonwealth that, by an executory agreement made directly between husband and wife, although founded on a valuable consideration moving from her, a trust in his property could be created which she could enforce. A husband may be a trustee for his wife, and is often held to be such when he has received her separate property or its proceeds, or when he has covenanted with a third person, or agreed with a third person, for a valuable consideration, to hold a specific part of his own property as trustee for his wife. But when the property has never been...