Field, J.
Proceedings in insolvency were begun against George C. Winchester on September 1, 1879. The deed was delivered to the tenant on or about April 14, 1879, and was recorded on September 1, 1879. The conveyance of the land was therefore made within six months of the filing of the petition. Gen. Sts. o. 118, §§ 89, 91. The conveyance was made by Litch at the request of George C. Winchester, in whose favor Litch held the land on a resulting trust. On December 1, 1876, the tenant, at the request of her husband, George C. Winchester, released her dower in real estate, then mortgaged by him to other persons; and, in consideration of this release, he [302]*302promised that he would convey to her the land demanded, and other property, all of which was only a fair equivalent for the release of dower. No claim was made that, at the time of this promise, George C. Winchester was not solvent; and the mortgage is still outstanding. There was evidence that, at the time of the conveyance, George C. Winchester was insolvent, and procured the conveyance to be made, not only for the purpose of performing his promise, but also for the purpose “ of effecting a fraud upon the insolvency laws; ” and there was also evidence that the tenant had then reasonable cause to believe that her husband was insolvent, and that the conveyance was made “ in fraud of the laws relating to insolvency.”
This case is like Holmes v. Winchester, 133 Mass. 140, except that it is an action at law, and not a suit in equity, and the property in dispute is real, and not personal, property. As the tenant has in form the legal title, she can set up in support of it any equities that will avail her. The conveyance was made upon an executed consideration which must be regarded as valuable, and it is assumed that the agreement between husband and wife was oral. Until the decision in Holmes v. Winchester, ubi supra, it had never been declared or decided in this Commonwealth that, by an executory agreement made directly between husband and wife, although founded on a valuable consideration moving from her, a trust in his property could be created which she could enforce. A husband may be a trustee for his wife, and is often held to be such when he has received her separate property or its proceeds, or when he has covenanted with a third person, or agreed with a third person, for a valuable consideration, to hold a specific part of his own property as trustee for his wife. But when the property has never been hers, and has not been purchased with her property, the trust, if established at all, must arise from the contract; and in this case the contract was made directly between the husband and wife. If no trust, nor anything in the nature of a trust, was created, then the conveyance was made in payment or discharge of a preexisting obligation. In Atlantic Bank v. Tavener, 130 Mass. 407, there was no trust; the land was conveyed to the wife in payment of a loan of money, and it was found that the conveyance was not made for the purpose of delaying, [303]*303hindering, or defrauding creditors. But if a trust in his property can be created by an oral executory agreement made directly between husband and wife, this can only be done in reference to personal property. A trust in land cannot be so created; and it is now held that, under an oral agreement to convey land, payment of the whole purchase money does not create a trust in the land, or enable the vendee to obtain specific performance, because of the statute of frauds. Gen. Sts. c. 100, § 19; c. 105, § 1. Blodgett v. Hildreth, 103 Mass. 484, 486. Glass v. Hulbert, 102 Mass. 24, 28. Ahrend v. Odiorne, 118 Mass. 261, 268. Thompson v. Gould, 20 Pick. 134. Basford v. Pearson, 9 Allen, 387. Ex parte Hall, 10 Ch. D. 615, 619.
Without considering, then, the general incapacity of a wife to make contracts with her husband, or to enforce in equity contracts against him, no trust was created in this case, and the contract was not one that would have been specifically enforced. If the husband had not procured the conveyance to be made, the land could have been attached by his creditors, and although the legal title was in Litch, the equitable estate of the husband in it would have passed to his assignees in insolvency. The agreement has, however, been executed by the husband, but the rights of the wife, in the most liberal view of the law, cannot be greater than those of a third person, who, under similar circumstances, had received such a conveyance.
An agreement to give future security is an executory contract, and “ imposes no higher legal obligation upon the debtor than his promise of payment, involved in the contracting of the debt. And his fulfilment of the one is equally open to objection as a preference as is his fulfilment of the other.” Forbes v. Howe, 102 Mass. 427, 435. Ex parte Ames, 1 Lowell, 561.
If the.oral agreement of the husband was that, at some time in the future, he would discharge his obligation to his wife by conveying to her this property, as this agreement neither created a trust, nor conveyed to her any interest in the land, his subsequent performance of the agreement would seem to be within this rule.
If the agreement was that the conveyance should be made at the same time as the release of dower, and this was postponed, [304]*304against the consent of the wife, by the husband fraudulently, or because he believed that his wife could not enforce the agreement against him, or from some other cause, the question involved becomes one of more difficulty; and Nickerson v. Baker, 5 Allen, 142, is relied on. There may be a distinction between an agreement to convey property presently, the consideration of which is paid, but where delay in making the conveyance is occasioned by some difficulties which have arisen in the course of the business, and an agreement to convey property at some future time, or when required in the future.
In Nickerson v. Baker, ubi supra, the instruction to the jury was, that the facts set forth “would not invalidate the conveyance, if the purchase was made in good faith, and no credit was given.” The court say, “ Upon the payment of the entire purchase money to the vendor, in equity he held the estate in trust for the benefit of the party paying the same.” It was formerly held that payment of the purchase money was such a part performance as took an oral agreement to convey land out of the statute of frauds; but that doctrine is now overruled. Blodgett v. Hildreth, and the other cases, ubi supra. 1 Story Eq. Jur. § 760. Fry on Spec. Perf. §§ 588, 589. Browne on St. of Frauds, § 461.
In this case, the consideration was the release of dower, and not the payment of money; but we have been shown no case in this Commonwealth which regards this as a material distinction. Mrs. Winchester could recover against George C. Winchester, if she were not his wife, the value of the dower released, if he refused to convey. The part performance which has been insisted on here, as, in the absence of fraud, taking the case out of the statute of frauds, has been in the nature of a part performance of the contract to convey,—such as letting into possession, — and is something more than performance by the vendee of his part of the contract. Basford v. Pearson, ubi supra. Potter v. Jacobs, 111 Mass. 32, 37. Wall v. Hickey, 112 Mass. 171.
In Nickerson v.
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Field, J.
Proceedings in insolvency were begun against George C. Winchester on September 1, 1879. The deed was delivered to the tenant on or about April 14, 1879, and was recorded on September 1, 1879. The conveyance of the land was therefore made within six months of the filing of the petition. Gen. Sts. o. 118, §§ 89, 91. The conveyance was made by Litch at the request of George C. Winchester, in whose favor Litch held the land on a resulting trust. On December 1, 1876, the tenant, at the request of her husband, George C. Winchester, released her dower in real estate, then mortgaged by him to other persons; and, in consideration of this release, he [302]*302promised that he would convey to her the land demanded, and other property, all of which was only a fair equivalent for the release of dower. No claim was made that, at the time of this promise, George C. Winchester was not solvent; and the mortgage is still outstanding. There was evidence that, at the time of the conveyance, George C. Winchester was insolvent, and procured the conveyance to be made, not only for the purpose of performing his promise, but also for the purpose “ of effecting a fraud upon the insolvency laws; ” and there was also evidence that the tenant had then reasonable cause to believe that her husband was insolvent, and that the conveyance was made “ in fraud of the laws relating to insolvency.”
This case is like Holmes v. Winchester, 133 Mass. 140, except that it is an action at law, and not a suit in equity, and the property in dispute is real, and not personal, property. As the tenant has in form the legal title, she can set up in support of it any equities that will avail her. The conveyance was made upon an executed consideration which must be regarded as valuable, and it is assumed that the agreement between husband and wife was oral. Until the decision in Holmes v. Winchester, ubi supra, it had never been declared or decided in this Commonwealth that, by an executory agreement made directly between husband and wife, although founded on a valuable consideration moving from her, a trust in his property could be created which she could enforce. A husband may be a trustee for his wife, and is often held to be such when he has received her separate property or its proceeds, or when he has covenanted with a third person, or agreed with a third person, for a valuable consideration, to hold a specific part of his own property as trustee for his wife. But when the property has never been hers, and has not been purchased with her property, the trust, if established at all, must arise from the contract; and in this case the contract was made directly between the husband and wife. If no trust, nor anything in the nature of a trust, was created, then the conveyance was made in payment or discharge of a preexisting obligation. In Atlantic Bank v. Tavener, 130 Mass. 407, there was no trust; the land was conveyed to the wife in payment of a loan of money, and it was found that the conveyance was not made for the purpose of delaying, [303]*303hindering, or defrauding creditors. But if a trust in his property can be created by an oral executory agreement made directly between husband and wife, this can only be done in reference to personal property. A trust in land cannot be so created; and it is now held that, under an oral agreement to convey land, payment of the whole purchase money does not create a trust in the land, or enable the vendee to obtain specific performance, because of the statute of frauds. Gen. Sts. c. 100, § 19; c. 105, § 1. Blodgett v. Hildreth, 103 Mass. 484, 486. Glass v. Hulbert, 102 Mass. 24, 28. Ahrend v. Odiorne, 118 Mass. 261, 268. Thompson v. Gould, 20 Pick. 134. Basford v. Pearson, 9 Allen, 387. Ex parte Hall, 10 Ch. D. 615, 619.
Without considering, then, the general incapacity of a wife to make contracts with her husband, or to enforce in equity contracts against him, no trust was created in this case, and the contract was not one that would have been specifically enforced. If the husband had not procured the conveyance to be made, the land could have been attached by his creditors, and although the legal title was in Litch, the equitable estate of the husband in it would have passed to his assignees in insolvency. The agreement has, however, been executed by the husband, but the rights of the wife, in the most liberal view of the law, cannot be greater than those of a third person, who, under similar circumstances, had received such a conveyance.
An agreement to give future security is an executory contract, and “ imposes no higher legal obligation upon the debtor than his promise of payment, involved in the contracting of the debt. And his fulfilment of the one is equally open to objection as a preference as is his fulfilment of the other.” Forbes v. Howe, 102 Mass. 427, 435. Ex parte Ames, 1 Lowell, 561.
If the.oral agreement of the husband was that, at some time in the future, he would discharge his obligation to his wife by conveying to her this property, as this agreement neither created a trust, nor conveyed to her any interest in the land, his subsequent performance of the agreement would seem to be within this rule.
If the agreement was that the conveyance should be made at the same time as the release of dower, and this was postponed, [304]*304against the consent of the wife, by the husband fraudulently, or because he believed that his wife could not enforce the agreement against him, or from some other cause, the question involved becomes one of more difficulty; and Nickerson v. Baker, 5 Allen, 142, is relied on. There may be a distinction between an agreement to convey property presently, the consideration of which is paid, but where delay in making the conveyance is occasioned by some difficulties which have arisen in the course of the business, and an agreement to convey property at some future time, or when required in the future.
In Nickerson v. Baker, ubi supra, the instruction to the jury was, that the facts set forth “would not invalidate the conveyance, if the purchase was made in good faith, and no credit was given.” The court say, “ Upon the payment of the entire purchase money to the vendor, in equity he held the estate in trust for the benefit of the party paying the same.” It was formerly held that payment of the purchase money was such a part performance as took an oral agreement to convey land out of the statute of frauds; but that doctrine is now overruled. Blodgett v. Hildreth, and the other cases, ubi supra. 1 Story Eq. Jur. § 760. Fry on Spec. Perf. §§ 588, 589. Browne on St. of Frauds, § 461.
In this case, the consideration was the release of dower, and not the payment of money; but we have been shown no case in this Commonwealth which regards this as a material distinction. Mrs. Winchester could recover against George C. Winchester, if she were not his wife, the value of the dower released, if he refused to convey. The part performance which has been insisted on here, as, in the absence of fraud, taking the case out of the statute of frauds, has been in the nature of a part performance of the contract to convey,—such as letting into possession, — and is something more than performance by the vendee of his part of the contract. Basford v. Pearson, ubi supra. Potter v. Jacobs, 111 Mass. 32, 37. Wall v. Hickey, 112 Mass. 171.
In Nickerson v. Baker, ubi supra, the court also say: “ The execution of the deed may, under the circumstances, be held to relate back to the time of the payment of the money, and the first existence of the duty to give a deed.” In Ex parte Ames, ubi supra, Lowell, J., says: “But I have always ruled that [305]*305security fairly given, as part of the same transaction as the loan, could not be invalidated by a change of the borrower’s situation re infecta, as if the money were advanced while the mortgage was in course of preparation, and the debtor fails in the mean time. I have not seen or known of any case which brings up the somewhat nicer question, argued here, whether specific and definite security, unconditionally stipulated for in writing, may be given after a lapse of time and a change of circumstances. This may depend on whether the contract is one that a court of law or equity would enforce in invitum.” It is on the ground that the conveyance of the shares was a part of the same transaction as the payment of the money, that Sparhawk v. Richards, 12 Nat. Bank. Reg. 74, was decided. In Post v. Corbin, 5 Nat. Bank. Reg. 11, 13, the court found that there had been such an “ actual possession under the agreement and performance of it ” as “ clearly takes the case out of the statute requiring the agreement to be in writing.” See also Potter v. Jacobs, ubi supra.
In the present case, there is no evidence recited in the exceptions tending to show that the husband practised any fraud upon the wife in obtaining her release of dower and withholding his conveyance, or that the delay was not with her assent. It does appear that, up to the time of the conveyance, “nothing had been done in execution of said alleged agreement.” The evidence recited is consistent with the view that she did not expect a present conveyance from her husband, but left it to be made by him at some time in the future, and it was actually made more than two years and four months after the release of dower. The conveyance cannot therefore be considered a part of the same transaction as the release of dower; and as it was a conveyance which the husband could not have been compelled to make, even if the wife were not under a disability to enforce agreements against him, we think it must stand upon the footing of a conveyance made by a husband to a wife in payment or discharge of a preexisting obligation, and, if made in fraud of the laws relating to insolvency, may be avoided by the assignees. If the wife can be regarded as a creditor of her husband, or as a person having a claim against him, within the meaning of the Gen. Sts. c. 118, § 89, then the conveyance may be avoided under that section; otherwise, under [306]*306§ 91. Under this view of the law, the tenant was not entitled to the ruling asked for. The instructions given are not set out with particularity, except the instruction that the facts, “if proved, would constitute a good consideration for such conveyance at common law,” which was correct. No specific objections appear to the remaining instructions.
Exceptions overruled.