Provencher v. Brooks

13 A. 641, 64 N.H. 479

• Court: Supreme Court of New Hampshire
• Decided: December 5, 1887
• Status: Published

Opinion

Carpenter, J.

The question is, whether a provision in a laborer’s assignment of his future wag’es, that they, or a part of them, shall be applied to provide necessaries for himself and his family, is merely evidence of fraud, or fraudulent as matter of law —“ conclusive proof of a fraudulent intent to defeat creditors.” Coolidge v. Melvin, 42 N. H. 510, 522, 530. The question is not touched by Runnells v. Bosquet, 60 N. H. 38. In that case it was found as a fact that the assignment was made without consideration and with fraudulent intent. There is a distinction between assignments of future earnings and assignments of existing property for such a purpose. In the latter case attachable property is clothed with a false title, made apparently the property of another, while in the former nothing passes which a creditor could seize. It stands much like a similar conveyance of property exempt from attachment. It may bo, but cannot be presumed to be, fraudulent. Currier v. Sutherland, 54 N. H. 475. If A conveys his lands or assigns his personal estate to B with an agreement that a part or all of the avails shall be appropriated by the latter to the support of the former, or otherwise, for his benefit, A’s creditors are necessarily hindered and delayed from reaching property by law chargeable with his debts ; but a like conveyance of property exempt from attachment, or which for any reason is not then liable to be taken for his debts (as unearned wages), does not necessarily have such an effect.

The debtor’s earnings after service of process on the trustee are exempt in all cases, and, as against all claims except for necessaries, his previous earnings to the extent of twenty dollars. Gen. Laws, c. 249, s. 40. An assignment of twenty dollars then due, to be applied to the procurement of necessaries for the debtor or bis family, cannot be declared fraudulent in law in favor of a creditor whose claim is not for necessaries ; no more can a like assignment of future wages be so declared in favor of a creditor whose claim is for necessaries. Future earnings are exempted to the laborer against all claims, including those for necessaries, because they are supposed to be required for his support and that of his family, and to the end that he may so apply them. Redington v. Dunn, 24 N. H. 166, 167. The debtor’s application of them to that purpose by means of an assignment or otherwise, cannot be declared a fraud in law. It may be fraudulent: whether it is or is not is a question of fact to be determined upon all the evidence. Lannan v. Smith, 7 Gray 150; Gragg v. Martin, 12 Allen 498 ; Schofield v. McConnell, 119 Mass. 368. It being found that there was no fraud, there must be

Judgment for the claimant.

Smith, J., did not sit: the others concurred.