In re Ida Mae Disorda Savage
| Decision Date | 07 October 1941 |
| Citation | 22 A.2d 153,112 Vt. 89 |
| Parties | IN THE MATTER OF IDA MAE DISORDA SAVAGE |
| Court | Vermont Supreme Court |
May Term, 1941.
Entry made June 12, 1941.
Mandamus.---1. Function of Jail Commissioners, P. L. 2216.---2. Mandamus Needs Peremptory Statutory Direction.---3. Mandamus Needs Legal Right and No Other Adequate Remedy.---4. P. L 2216.---5. Consideration for Mortgage.---6. Fraudulent Intent in Mortgage.---7. Fraudulent Intent Not Presumed.---8. Conclusion of Fraud.---9. Encumbrance During Litigation.---10. Encumbrance to Value of Property Not Fraudulent.---11. Fraudulent and Preferential Conveyances.---12. Release of Equity of Redemption.---13 Poor Debtor's Oath after Encumbrance and Surrender of Equity P. L. 2216.---14. Commissioners of Jail Delivery Exclusive Tribunal for Poor Debtor's Oath, P. L. 2208--2217.---15. No Appeal from Proceedings of Commissioners of Jail Delivery.---16. Mandamus Not Examination De Novo.---17. Mandamus Proper Remedy.---18. Mandamus in Discretion of Court.---19. Refusal of Mandamus.---20. Committing Creditor's Rights.
1. The Commissioners of Jail Delivery perform a judicial function---P. L. 2216.
2. Where an act is judicial in nature the performance of it can not be enforced by mandamus unless there is a peremptory statutory direction that it shall be performed.
3. In order to justify the issuance of a writ of mandamus it must appear that the petitioner has a clear legal right to the performance of a particular duty at the hands of the petitionees and that the law affords no other adequate remedy.
4. P L. 2216 directing the Commissioners of Jail Delivery to admit a prisoner to the poor debtor's oath under the conditions therein stated is mandatory and imposes an inescapable duty when the requisite facts have been found by them.
5. Consideration for a mortgage is valuable and adequate if a loan to the full amount of the property encumbered is thereby secured.
6. When a conveyance is made for a valuable and adequate consideration, there must be a fraudulent intent on the part of both the grantor and grantee to make the conveyance fraudulent.
7. A fraudulent intent on the part of a grantor and grantee in a conveyance will not be presumed.
8. In no doubtful matter does the Court lean to the conclusion of fraud.
9. That an encumbrance was created during the pendency of litigation is not, standing alone, sufficient to indicate bad faith.
10. Where a person encumbers property to its full value for a new valuable and adequate consideration, even during the pendency of litigation, such encumbrance will not, without more, be considered as a fraudulent disposal of the property.
11. A fraudulent conveyance is malum in se, a preferential conveyance is malum prohibitum.
12. No preference or prejudice to creditors occurs by the conveyance of a valueless equity of redemption in encumbered property to the person holding the encumbrance.
13. When the findings of fact of Commissioners of Jail Delivery indicate that an imprisoned judgment debtor's only alleged fraudulent conveyance of property consisted of encumbering property subject to execution for good and valuable consideration and upon threat of foreclosure conveying the valueless equity of redemption to the holder of the encumbrance, the debtor had a clear legal right to be admitted to the poor debtor's oath (P. L. 2216).
14. Under P. L. 2208--2217, inclusive, the Commissioners of Jail Delivery constitute the only tribunal having jurisdiction to admit a poor person, imprisoned on an execution issued upon a judgment in a civil cause, to the poor debtor's oath.
15. There is no appeal from the decision and no provision for review of proceedings of the Commissioners of Jail Delivery upon application to be admitted to the poor debtor's oath.
16. The purpose of a petition for a writ of mandamus is not to re-examine the proceedings complained of de novo but to compel obedience to the peremptory terms of a statute.
17. The proper remedy to compel Commissioners of Jail Delivery to admit an imprisoned judgment debtor to the poor debtor's oath when the findings required by the statute have been made by Commissioners who refuse to comply with the mandatory terms of the statute is, under the circumstances of the case at bar, by writ of mandamus.
18. A petition for a writ of mandamus is addressed to the sound judicial discretion of the Court.
19. Although a writ of mandamus may be appropriate, it may be refused in the discretion of the Court where questions of grave importance concerning the rights of persons who have had no opportunity to be heard are involved.
20. Although a committing creditor may not be a party to proceedings seeking a writ of mandamus, it is within the Court's discretion to grant such writ if such party was present and presented its claim before Commissioners hearing the matter as the basis for finding facts which warranted the granting of the writ.
PETITION FOR MANDAMUS brought to Supreme Court, Rutland County, May Term, 1941. Petitioner was confined on close jail certificate, see Callahan v. Disorda, 111 Vt. 331, 16 A.2d 179. Certificate was vacated and upon petitioner's application to the Jail Commissioners for leave to take poor debtor's oath, hearing was had and oath refused. Further facts appear in the opinion.
Let a writ of mandamus issue commanding the Commissioners of Jail Delivery for the County of Rutland, forwith to admit the relator to the poor debtor's oath and to deliver to her two certificates thereof, in accordance with the provisions of P. L. 2216. No costs are awarded.
Wayne C. Bosworth for the petitioner.
Present: MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.
This is a petition for a writ of mandamus to compel the respondents, the Commissioners of Jail Delivery for the County of Rutland, to admit the relator to the poor debtor's oath. The Commissioners have been served with the petition and have notified us that they do not desire to be heard.
The relator has been confined in close jail upon a certified execution granted after a judgment obtained against her in an action of tort at the March Term, 1940, of Rutland County Court and affirmed in this Court at the November Term, 1940. See Callahan v. Disorda, 111 Vt. 331, 16 A.2d 179. The execution was served upon her on November 25, 1940. In April, 1941, the certificate was vacated by order of Hon. Stephen S. Cushing, one of the Superior Judges, and thereafter the relator applied to the Commissioners for leave to take the poor debtor's oath. A hearing was held, at which the committing creditor appeared, and upon the testimony the Commissioners made a written finding of facts, in which it was stated that the relator, at the time of the trial, had no property subject to execution except a 1932 Chevrolet automobile, purchased in 1938, which in August, 1940, she mortgaged to secure a loan of $ 100. with an indorser on the note which she gave as additional security. In December, 1940, while she was confined under the execution, the note being unpaid, upon demand and threat of foreclosure, she surrendered the car to the mortgagee. The value of the car at the time the mortgage was given, and at the time it was surrendered was $ 100. After finding these facts, and others not here material, the Commissioners refused to admit the relator to the poor debtor's oath and the present petition is the result of their action.
The Commissioners of Jail Delivery perform a judicial function, ( In Re Blake, 107 Vt. 18, 27, 175 A. 252) and, where an act is judicial in nature, the performance of it cannot be enforced by mandamus unless there is a peremptory statutory direction that it shall be performed. Richards, Truesdell & Co. v. Wheeler, 2 Aik. 369, 371; Hoar v. Commissioners of Jail Delivery, 2 Vt. 402, 403, 21 Am. Dec. 543; Sowles et al. v. Bailey, 69 Vt. 515, 520, 38 A. 237; Crystal Brook Farm, Inc. v. Control Commissioners of Derby, 106 Vt. 8, 10, 168 A. 912. In order to justify the issuance of the writ it must appear that the relator has a clear legal right to the performance of...
To continue reading
Request your trial