Williams v. Thompson

30 Mass. 298

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1832
• Status: Published

Opinion

Wilde J.

afterwards drew up the opinion of the Court. This is a writ of entry, in which the demandant claims title under the levy of an execution in his favor against one Daniel Warren ; and the tenant also derives his title from the same Daniel Warren and Irena his wife. The deed from them to the tenant was prior to the demandant’s levy, so that if it was a valid conveyance the tenant’s title must prevail. The objection to this conveyance is, that it was made without an adequate consideration, and was void as against Warren’s creditors. This objection, we think, is maintained by the facts agreed. The demanded premises are part and parcel of a farm called the “ Thomas farm,” and this farm was in 1826 conveyed by Bradford Harlow and others to Daniel Warren and his wife “in equal shares.” By this deed, it being made during coverture, the demandant’s counsel contend that the grantees became seised of an entire estate, and that on the death of either the whole would go to the survivor ; that during their joint lives the husband was not only entitled to the income and profits, but had also the right to cut down the wood and appropriate it to his own use, without being answerable for waste. On the other hand, the counsel for the tenant have argued, that by the conveyance to Warren and his wife the fee vested in them by moieties as tenants in common; that such was the manifest intention of the grant, because they were to hold in equal shares ; and that there is no technical rule of law to defeat this intention of the parties. In deciding this case, however, we have not found it necessary to consider and discuss these questions ; for admitting the legal effect of the grant in question to be as contended for by the counsel for the tenant, still Warren had a legal estate in the moiety conveyed to the tenant, and this was conveyed to him without consideration. The only consideration for this conveyance appears to have been the proceeds of the sale of the wife’s lands devised to her by her father, which were appropriated to the payment of her husband’s debts ; and it is agreed that these proceeds were a fair equivalent for a moiety of the Thomas farm. But Warren had a freehold estate in his wife’s land, and this he has relinquished without an equivalent, thus materially impairing the remedy of his creditors to obtain satisfaction for their debts. The wood and timber he cut on his wife’s land, and on the Thomas farm, constituted no part of the consideration for the conveyance to the tenant. The consideration appears on the face of the deed, and there is no evidence of any othe. consideration.

The next qmstion to he considered is, whether the tenant has any title under the division deed between him and the creditors of Warren, who had levied on his moiety of the Thomas farm; and we think he has not. Certainly he has no equitable title, and we think he has. no legal title. The basis and the object of that division or partition wholly fails. The tenant’s title being void as against the demandant, he cannot set up a title obtained under color of right, to the prejudice of Warren’s creditors. The creditors who were parties to this deed of division have taken their full shares in another part of the farm, and they had nothing more to release to the tenant. He is bound by that division, and is estopped to deny that the creditors have their full purparty in the lands now held by them in severalty. The tenant had no estate as against the demandant, upon which the creditors’ release could operate, and his title, if he has any, by virtue of the deed of partition, is incidental and accessory to his title from Warren, and must fail with it.

As to the deed from Stephen Harlow, that conveys no part of the demanded premises. His share by the division was assigned to him in another part of the farm, and the tenant is bound by that division. The tenant’s title, therefore, wholly fails, and he cannot object to the form of the levy of the demandant’s execution. It is good against every one except the other tenants in common.

Judgment for demandant.