Blasdel v. Fowle

120 Mass. 447, 1876 Mass. LEXIS 222

Opinion

Endicott, J.

The material facts in this case may be briefly stated. The plaintiff derives her title to the mortgage, described in the bill, under the will of her husband, John C. Blasdel. He was assignee in bankruptcy, and one of the largest creditors, of Charles L. Fowle; and his vote in favor of Fowle’s discharge was given upon an agreement with Fowle that his debt, less the dividend, should be paid in full by Fowle after his discharge, as if no discharge had been obtained. Fowle obtained his discharge, and Blasdel demanded payment. A note was made for the amount previously agreed upon, and signed by the defendant, Susan C. Fowle, wife of the bankrupt, and secured by the mortgage on her separate property, which is the subject matter of this suit. She signed the note and mortgage at the request of her husband, with no consideration moving to her benefit or the benefit of her property.

The agreement under which the bankrupt was to pay the debt of his creditor and assignee in full, if he would assent to the discharge, was illegal at common law, and contrary to the provisions of the bankrupt act. It was a secret agreement in fraud of creditors, and cannot be enforced in any form of proceeding. U. S. Rev. Sts. § 5131. Cockshott v. Bennett, 2 T. R. 763. Phelps v. Thomas, 6 Gray, 327. Case v. Gerrish, 15 Pick. 49. Coates v. Blush, 1 Cush. 564. Partridge v. Messer, 14 Gray, 180. Dexter v. Snow, 12 Cush. 594. Downs v. Lewis, 11 Cush. 76. Ramsdell v. Edgarton, 8 Met. 227. Smith v. Bromley, 2 Doug. 696, and note.

The fact is not important that the note of the wife and the mortgage securing it were made after the discharge was obtained, as the only consideration of either rested on the illegal and fraudulent agreement between Blasdel and Fowle. Nor is it material whether the wife knew of the fraudulent agreement when she made the note and mortgage; for the agreement being illegal and void, all instruments made for the purpose of giving it effect are tainted with the illegality, and will not be enforced by a court of equity.

The plaintiff in this case cannot stand in a better position than her testator, and the entry must be

Bill dismissed with costs.