Wellington v. Janvrin

60 N.H. 174

• Court: Supreme Court of New Hampshire
• Decided: December 5, 1880
• Status: Published

Opinion

Foster, J.

This is a proceeding in equity by creditors to annul a conveyance or release by tbeir debtor of bis title to real estate upon wbicb they have levied. Tbe referee finds that tbe conveyance by Albert Janvrin to bis children was fraudulent as to tbe plaintiffs. Tbe fraudulent conveyance may, therefore, be set aside on a bill in equity seeking that relief. 1 Sto. Eq., ss. 184, 440; Dodge v. Griswold, 8 N. H. 425 ; Marston v. Brackett, 9 N. H. 336, 352; Carter v. Grimshaw, 49 N. H. 100 : Free v. Buckingham, 57 N. H. 95.

Although tbe deed of December 3,1875, purported to convey tbe premises to Albert’s children, it was. upon certain “ conditions,” and those conditions in effect amounted to a conveyance of a life estate to Albert. McClure v. Melendy, 44 N. H. 469. Whether bis enjoyment or use of tbe life estate was limited by tbe terms of tbe deed, is a question wbicb it is unnecessary to consider. Having accepted this estate, be became tbe owner of it, as be would become tbe owner of any other estate wbicb be bad accepted under a valid grant. And his fraudulent conveyance of bis life estate, like bis fraudulent conveyance of any other property, may be set aside.

Nor was the grantor’s attempt to exempt this estate from attachment and levy for Albert’s debts effectual. What property is subject to attachment and what is exempt is a matter regulated by statute. G. L., cc. 224, 236, 237. Tbe legislature has enacted that “ all real estate except tbe homestead right may be taken on execution.” And another exemption of “real and personal property exempted by a donor from levy for payment of tbe donee’sdebts ” cannot be inserted by construction. The stipulation in tbe deed, that tbe property conveyed to Albert should not be liable for bis debts, was an attempt to exercise tbe legislative power of enlarging tbe statute of exemptions. His interest in tbe property being a life estate became subject to tbe legal incidents of a life estate, one of which is that it may be taken on execution. Johnson v. Cushing, 15 N. H. 298; Upham v. Varney, 15 N. H. 462; Clapp v. Ingraham, 126 Mass. 200; Sparhawk v. Cloon, 125 Mass. 263 ; Brandon v. Robinson, 18 Ves., Jr., 429. The levy having been made “by such mode of division as the nature of the property would admit ” (Gr. L., c. 137, s. 8),

The plaintiffs are entitled to a decree.

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