Porter v. Wakefield

• Decision Date: 07 January 1888
• Citation: 146 Mass. 25,14 N.E. 792
• Parties: PORTER v. WAKEFIELD et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

146 Mass. 25

14 N.E. 792

PORTER v. WAKEFIELD et al.

Supreme Judicial Court of Massachusetts, Suffolk.

January 7, 1888

COUNSEL

L.S. Dabney, for defendant Cyrus Wakefield.

It is not necessary that the claim of an alleged trustee against a principal defendant, in order to make it a bar to charging him, should be one on which he can maintain an action. Com. v. Parker, 2 Cush. 212, 225; Hitchcock v Lancto, 127 Mass. 514. The principal defendant can maintain no action against the trustee for the recovery of the said jewelry in his possession, or for its value. It is personal property of the wife coming to the possession of the husband during marriage. Upon the dissolution of the marriage by divorce, the only remedy of the wife, for the recovery of the property or of its value, is that given by Pub.St. c 146, § 24, and is a decree of the court granting the divorce. The policy of the law is to have all rights of property settled between divorced persons by the court that decrees the divorce. But if these rights can be brought into litigation by the trustee process, this policy of the law is defeated. If the marriage relation were still subsisting between these parties, it is clear that the husband could not be charged as trustee of his wife upon the facts disclosed and the reason would be that inasmuch as the wife could maintain no action against him for the recovery of the property, or its value, the creditor of the wife, appropriating, by this process, to herself, the wife's right, and only the wife's right, would be no better off than the wife, and would have no larger right or remedy than the wife. But the same is true as the case stands. The wife, since divorce, can recover neither the property nor its value, and the trustee process appropriates to the plaintiff only the wife's right, nothing more.

E.M. Parker, for plaintiff.

To sustain this appeal the appellant must establish that an error of law must have been made by the court below in rendering the decision appealed from. Dorr v. Richardson, 114 Mass. 346; Pub.St. c. 152, § 10. No question of fact, or decision involving drawing of inferences of fact, will be reviewed on such appeal. Keegan v. Cox, 116 Mass. 289. At the time of the service of the plaintiff's writ the trustee had in his possession property of the defendant subject to attachment. It is well-settled law in this commonwealth that a trustee is not entitled to retain, as against the plaintiff's attachment, property of the principal defendant in the possession of the trustee, by reason simply of the fact that the principal defendant is indebted to the trustee; but that, in order to have such a right of retainer, the trustee must show that, by reason of some contract, express or implied, he has a lien on the goods in his possession. Allen v. Megguire, 15 Mass. 490; Brewer v. Pitkin, 11 Pick. 298; Allen v. Hall, 5 Metc. 263, 267. To the existence of the right of retainer claimed by the trustee in this case, two things are necessary, and both must concur: (1) There must be an indebtedness of the principal defendant to the trustee; (2) there must be a lien given the trustee on the property in his possession. And the burden is on the trustee to establish the existence of such lien or incumbrance, (Ripley v. Severance, 6 Pick. 474;) or, as the rule is stated per curiam in Graves v. Walker, 21 Pick. 160: "He is to give such an answer as will enable the court to say judicially that he is to be discharged." Nothing is better settled in this state than that contracts between husband and wife, of money lent and money paid at request, are absolute nullities. Bassett v. Bassett, 112 Mass. 99; Roby v. Phelon, 118 Mass. 541; Kneil v. Egleston, 140 Mass. 202, 4 N.E. 573; Woodward v. Spurr, 141 Mass. 283, 6 N.E. 521. It is not a case of a legal right with a suspension of the remedy. No case has so far been found in which any one has contended, in this commonwealth, that a sale of the old worn-out house furniture, by a wife, and her expenditure of the proceeds, was a tort towards the husband, rendering her indebted to him in the amount of the proceeds of sale. It is, however, perfectly well settled that the supposed tort is as fictitious as the alleged contract. Rex v. Smyth, 1 Moody & R. 155; Phillips v. Barnet, L.R. 1 Q.B. 436; Abbott v. Abbott, 67 Me. 304. There is not a word in any answer to show any lien on this property,--exactly the transaction described by PARKER, C.J., in Jarvis v. Rogers, 15 Mass. 389, 415. The relation of husband and wife between the trustee and the defendant in no way affects the bringing of this proceeding. It could have been brought, and the husband charged as trustee of his wife for specific property of hers in his possession, even during the existence of the marital relation. Robinson v. Trofitter, 109 Mass. 478. See Legg v. Legg, 8 Mass. 99; Dunham v. Dunham, 128 Mass. 34.

OPINION

FIELD J.

We need not consider whether Pub.St. c. 169, § 18, cl. 1, providing that "neither husband nor wife shall be allowed to testify as to private conversations with each other," applies to the answers of a trustee in trustee process, or whether, if it does, a trustee can rely upon an agreement made with his wife in the presence of no other person, when he cannot be asked on interrogatories or be permitted to state what the conversations which resulted in the agreement were. Taking the answers of the trustee most favorably for him, they show that he "advanced" money to his wife, or paid out money for her, at her...