In re Savage

• Decision Date: 07 October 1941
• Citation: 112 Vt. 89,22 A.2d 153
• Parties: In re SAVAGE.
• Court: Vermont Supreme Court

22 A.2d 153

112 Vt. 89

In re SAVAGE.

Supreme Court of Vermont. Rutland.

Oct. 7, 1941.

[Copyrighted material omitted.]

Petition to the Supreme Court.

Proceeding in the matter of Ida Mae Disorda Savage for a writ of mandamus to compel the Commissioners of Jail Delivery for the County of Rutland to admit relator to the poor debtor's oath.

Writ of mandamus issued in accordance with opinion.

Argued before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

Wayne C. Bosworth, of Middlebury, for petitioner.

PER CURIAM.

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 ail 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 v. Wheeler, 2 Aik. 369, 371; Hoar v. Commissioners of Jail Delivery, 2 Vt. 402, 403; Sowles 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 the particular duty at the hands of the respondents, and that the law affords no other adequate remedy. City of Burlington v. Burlington Traction Co., 98 Vt. 24, 36, 124 A. 857; Town of West Rutland v. Rutland Ry. L. and P. Co., 96 Vt. 413, 420, 121 A. 755; Grout v. Gates, 97 Vt. 434, 453, 124 A. 76; Barber v. Chase, 101 Vt. 343, 351, 143 A. 302.

P. L. 2216 provides that: "When the commissioners find that the prisoner has not estate to the amount of twenty dollars, nor sufficient to satisfy the execution on which he is committed, exclusive of property exempt from execution, and has not disposed of any part of his estate to defraud his creditors, nor disposed of the same after his commitment to defraud the committing creditor, or to prefer some other creditors to him, they shall admit such prisoner to the poor debtor's oath * * *." This statute is mandatory and imposes an inescapable duty upon the Commissioners when the requisite facts have been found by them.

An examination of the findings discloses that this is the situation in the present case. While it is not specifically found that the relator has not disposed of her property to defraud her creditors, the necessary inference from the facts found is to this effect. The mortgage on the automobile cannot be considered as a fraudulent disposal of property. The consideration was valuable and adequate in the eyes of the law (Jones, Adm'x v. Williams, 94 Vt. 175, 182, 109 A. 803), and consequently, in order to make the conveyance fraudulent there must have been a fraudulent intent on the part of both grantor and grantee. Ludlow Sav. Bk. & Tr. Co. v. Knight, 92 Vt. 171, 173, 102 A. 51, 2 A.L.R. 1433; Holstein v. Blanchette, 108 Vt. 30, 35, 182 A. 289. We cannot presume that this was the case. Tillison v. Tillison, 95 Vt. 535, 537, 116 A. 117; Newton, Trustee, v. Thomas, 111 Vt. 259, 262, 15 A.2d 589. In no doubtful matter does the Court lean to the conclusion of fraud. Dunnett v. Shields & Conant, 97 Vt. 419, 430, 123 A. 626. The fact that the mortgage was given during the pendency of the litigation is not, standing alone, sufficient to indicate bad faith. Stockwell v. Stockwell, 72 N.H. 69, 54 A. 701, 702; Thornton v. Davenport, 1 Scam. 296, 2 Ill. 296, 29 Am.Dec. 358, 359.

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