Foster v. Foster

56 Vt. 540

• Court: Supreme Court of Vermont
• Decided: May 15, 1884
• Status: Published

Opinion

The opinion of the court was delivered by

Eowell, J.

In the answer of Samuel S. Poster it is averred on information and belief that the oratrix’s libel for divorce was amended by setting up a cause that arose after the libel was brought, and that the divorce was granted for that causé -and not for a cause that existed at the time the libel- was brought. The answer is not evidence of the fact, and no -other answer makes the averment, and- there is no evidence in • the' case to sustain it, nor is the point made in defendants’ brief. The record shows that the divorce was granted on the libel as it originally stood. It must be taken therefore that before -and on January 20, 1877, the day the libel was brought and the conveyances in question made, the oratrix had cause for divorce. This raises the question whether she then had, in the language of the statute against fraudulent conveyances, “ a right, debt, or duty ” as ■ against her husband that the law will take cognizance of.

A claim for alimony is incident to divorce and consequent upon it; and while the oratrix may not have been in strict language a creditor of her husband, yet she stood to him in the relation of a creditor, having an inchoate right of payment of whatever alimony might thereafter be decreed to her. Indeed the defendants concede in argument the general proposition that a wife having cause for divorce is a quasi creditor before it is granted and an actual creditor after alimony is decreed. The oratrix comes therefore'within the purview of said statute. Such is the holding of the cases: Livermore v. Boutelle, 11 Gray, 217; Burrows v. Purple, 107 Mass. 428; Stuart v. Stuart, 123 Mass. 370; Brooks v. Caughran, 3 Head (Tenn.) 464; Nix v. Nix, 10 Heisk. (Tenn.) 546; and cases passim.

Another question is, Were the conveyances in question, or any and which of them, fraudulent and void as against the orators ? At the ti|ne they were made the defendant William Foster had good reason to believe and did believe that the oratrix was about to bring-her libel against him for divorce, and in view of the sequel he must be taken to have then had good reason to believe, at least, that she had just cause therefor. We are well satisfied that he -made said conveyances with the intent oil his part of avoiding the payment of alimony. The fact that his wife had before then advised, him to convey some of his property to his children by a former wife to benefit them and relieve himself from care, has but little significance in the circumstances of this case, and does not deprive her of the right of now questioning those conveyances. She neither counseled nor anticipated conveyances fraudulent as to herself. A fair and just distribution of his large property among his children she well might have •advised; but of a distribution to an unreasonable amount, including even the homestead on which they lived, with intent to ■ defraud lior and so resulting, she has a right to complain. The language of the court in Nix v. JVix is to the point: “ There is no forcé in the fact that at some moments of harmony between the husband and wife she herself had counseled the sale of the land. A court of equity will attach very little importance to such a fact in view of the surroundings of the complainant. If she did advise it, she did not know at the time that it was the deliberate purpose of her husband to abandon her and her children to their fate.” But it is said that the conveyances are hot void as against the oratrix because her husband retained property sufficient for the support of himself and family. The property that he conveyed to his children on the day in question was of the value of $22,0j)0, according to his estimate in his answer, and all but $1,500 of it- was in real estate in different towns in this State. According to his own.testimony he retained that he did not then convey, $10,630 — which is a liberal estimate —whereof $8,280 were in mortgage notes against nine different persons, $500 in a bond of the town of Sheldon, $1,000 in cash and small notes', $200 in personal property on his home farm, and $650 in a pasture and a sugar-place in Williamstown. On ■or about January 20, 1877, he gave said town bond to his attorney to apply on account. In about ten days thereafter he delivered all his notes to his. son Samuel, directing him to notify the makers thereof that he held them and that payment must be made to him, and he gave notice accordingly. In March following he gave said personal property on the home farm to his daughter, Mrs. Kibby. At some time, but just when does not appear, he gave $2,800 of said mortgage notes to his daughter, Olive M. Warren, as an advancement, as is alleged. The notes thus delivered to Samuel were not given to him, but were put into his hands, as we think, to avoid the payment of alimony.

Thus was the property retained disposed of, and rendered practically unvailable for the payment of alimony, except as it might be made so, as some of it has been, by proceedings for contempt. A debtor is bound to'reserve ample property for the payment of his debts. Whether the property reserved is what will be deemed ample for this purpose does not depend entirely on its amount and value; for the real end to be accomplished is, that the conveyance shall not deprive creditors of the means of collecting their debts: Church v. Chapin, 35 Vt. 223. There is no ground for saying that the defendant, William Foster, retained property amply sufficient to satisfy the demand o'f the oratrix. Surely the voluntary provisions for his children in such a condition of things are not sustainable against the oratrix. The ancient rule, that voluntary conveyances to children and post-nuptial settlements could be avoided if there was some indebtedness existing at the time has been relaxed in this country and in England, and such provisions will now be upheld if they be reasonable, not disproportionate to the means of the grantor in view of his debts and situation, and clear of any intent, actual or constructive, to defraud creditors: Kehr v. Smith, 20 Wall. 31; Lloyd v. Fulton, 91 U. S. 479; Lerow v. Wilmarth, 9 Allen, 382; Babcock v. Eckler, 24 N. Y. 623; 2 Kent Com. 441, n. 1; 1 Story Eq. ss. 362, 165; Gale v. Williamson, 8 M. & W. 405.

These conveyances — except Mrs. Hart’s, of which we shall speak hereafter — being without valuable consideration, and made with the fraudulent intent aforesaid, it is immaterial whether or not the grantees were aware of that intent and participated in the fraud. But if it were material, we are well persuaded that Samuel at least knew of his fathers purpose and aided in the accomplishment of it.

Hence it follows that as to the oratrix the said William must, be regarded as being the owner and possessor of the lands in question the same as though he held the legal title thereof.

But it is objected that even then there can be no decree of foreclosure, because such a decree presupposes a lien and that here is no lien, (1) for that the restraining order did not sufficiently describe the land that the libellee was enjoined from conveying ; (2) for that it does not legitimately appear that said order was ever filed and recorded in the town clerk’s office of any of the towns where the lands are situate; (3) for that the County Court had no power to make the payment of alimony a charge upon the land; and (4) for that the decree for alimony was not responsive to the prayer in the libel in that behalf. The. last two objections are made in the answers but not in defend-' ant’s brief.

The libel alleged that the libellee was “ possessed- of certain real estate situate in different towns in the State of Yermont,” and prayed that he be restrained from conveying, etc., “ said real estate.” The restraining order enjoined him from conveying, etc., his “ said real estate situated in the State of Yermont.” His real estate was situate in the towns of Hardwick, Middlesex, Moretown, and Williamstown. The record shows that the libel and the restraining order were filed and recorded in the town clerk’s office of Williamstown on January 30, 1877, in the town clerk’s office of Hardwick on February 6, 1877, and in the town clerk’s office of Moretown on the 28 th of said February; but there is no allegation in the bill of any such records, and therefore it is objected that no proof thereof can properly be made. But witfiout considering these objections, we proceed to the other points made; and first as to the fourth objection.

The libel prayed, among other things, for alimony “ out of said real estate,” whereas it was decreed in money. But praying for alimony out of specific property does not preclude the court from decreeing it generally or out of other property. The court may treat such a prayer as -precatory as to the particular property out of which alimony shall be decreed, and decree it otherwise in its discretion as it may deem just.

Secondly, as to the third objection, the original decree for alimony was for $10,000 in money, whereof one-half was for the support of the oratrix, to be enjoyed by her in her own rights and the other half was in equal shares for the two children, to be placed in trust for their support and benefit; and the payment of the whole was made “ a charge and lien upon the real estate of the petitionee.” This decree was subsequently modified-in some respects not material to be noticed, and executions taken-out thereon and returned nvlla bona.

The statute provides that on the dissolution of a marriage, the court may decree to the wife such part of the real and personal estate of her husband, or such sum of money to be paid to her in lieu thereof, as it deems just. E. L. s. 2381. Now the power to decree real estate, and thus pass title thereto, clearly includes thejjpower to charge it with the payment of money awarded in lieu thereof, on the principle laid down by Homat, that, in laws conferring power, the greater authority implies the lesser of the same nature. On the same principle, in laws prohibiting acts, the lesser prohibition implies the greater. And we understand it to have been the practice to do what was done in this case. We remember a case in Orange County in which Judge Peck charged the payment of alimony on the libellee’s farm, and ordered him to give a mortgage thereof to a trustee to secure it, and the lien to be discharged on the execution of the mortgage.

This view makes a decree of foreclosure an apt remedy in this case, and renders it unnecessary to consider the further objection that the lands have never been levied upon by the orators.

There is no embarrassment in the fact that part of the alimony was decreed for the support and benefit of the children. Alimony, in theory and effect, is primarily awarded to the wife; but the statute provides that when alimony is awarded to the wife, the court, instead of ordering it delivered or paid to her, may order it delivered or paid to trustees to invest and to apply the income thereof to the support of the wife and minor children, or any of them, in such manner as it directs, and to pay the principal sum to the wife and children as it may order, having regard to their situation and circumstances. E. L. s. 2383. But the right of the children is incident to and a part of the right of the mother, and inseparably connected therewith.

As to the farm conveyed to Mrs. Hart, her former husband, William M. Deavitt, paid in something towards it, but how mu^h does not appear, before he took a deed thereof and gave back the mortgage to secure the balance of the purchase money, lie also paid about $400 of the principal of the mortgage.

In respect to the consideration of conveyances, it is to be observed that there is an important difference between law and equity. At law, a conveyance is wholly good or wholly bad; there is no middle ground. But in equity, when the property is of greater value than the consideration, the conveyance may be impeached to a partial extent as being voluntary, and, if not fraudulent in fact, be sustained to the extent of the consideration. Chancellor Kent says that nothing can be more equitable than this mode of dealing with conveyances of such indecisive and dubious aspect that they cannot be entirely suppressed or entirely supported with satisfaction: Boyd v. Dunlap, 1 Johns. Ch. 478; 1 Am. Lead. Cas. 49; Herne v. Meeres, 1 Vern. 465.

We deem the conve^yance to Mrs. Hart of precisely this character, and as making a proper case for the application of the equitable rule that it may stand as security for what of the principal of the purchase money her former husband paid, with the interest thereon.

The decree is affirmed in all respects except as relates to this farm, wherein it is modified to meet the views above expressed, and the case is remanded with a mandate accordingly.