Whithed v. Mallory

58 Mass. 138

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1849
• Status: Published

Opinion

Shaw, C. J.

The tenants objected to the validity of the levy, on which the demandant claims to recover the premises in question, on account of the deduction made by the appraisers of the value of the supposed right of dower in the wife of Simeon Mallory. If no such right existed, this deduction is wrong; and, as too much estate was set off, and it could not be apportioned, the levy was irregular and void. Root v. Colton, 1 Met. 345. Upon the facts, we think nó such right did exist, or could ever be claimed by the wife of Simeon Mallory, because he was never seized during the coverture. Before his marriage, he had aliened the estate, by a conveyance good against him and his heirs. Blood v. Blood, 23 Pick. 80. But it was contended, and so the judge directed the jury, that this was an objection that the defendant, Obadiah Mallory, could not make, if the jury should find the title of Moses Mallory to be under a fraudulent deed from Simeon, given only to defraud creditors.

But it is to be considered, that a voluntary conveyance, made to defeat creditors, is not absolutely void, but only voidable ; it is good as against the grantor and his heirs. It can only be avoided by creditors, and by them only to an extent sufficient to satisfy their debts. The surplus, if any, remains good to the grantee. If, therefore, a larger amount is taken on execution than the creditor has a right to take, it is a direct injury to the holder; and if this is done in such a mode, that the good and the bad cannot be separated, and the whole is irregular and void, the court are of opinion, that this may be shown by him who holds the land under a voluntary conveyance, not good as against creditors. Tc test this, suppose there is a voluntary conveyance, which is fraudulent, and admitted to be fraudulent against creditors, of the value of $1000; a creditor obtains judgment for $300, and levies. Various charges and incumbrances on the estate are suggested to the amount of $500, so that the debtor’s interest is appraised at $500, and three fifths of the estate is set off to satisfy the execution. These imaginary incumbrances, on investigation, are proved to be groundless. If the holder under the voluntary conveyance cannot be permitted to show this, he is deprived of an estate which he has a legal right to hold, without remedy.

Obadiah Mallory, though he took under a deed made by Moses, in consideration of love and affection, and Moses took of Simeon by a conveyance, which was fraudulent as against creditors, yet he had a good title against every body, except creditors, and they can only defeat his title to the extent of then: legal claims. The demandant having taken too much, we think it was competent for Obadiah to show this in his defence.

Verdict set aside, and new trial ordered.