Imágenes de páginas
PDF
EPUB

repairs made which were necessary for the preservation of the property and to keep it tenantable,14 insurance, 15 except insurance effected for his own benefit,16 and any other necessary expenses, 17 even though the grantee was a guilty participant in the fraud.18 The property being large and valuable, and having been placed by the grantee in the hands of an agent, who managed it and collected the rents, such grantee should be allowed for the agent's commission. 19 The grantee should also be credited with expenditures made in collecting book accounts or other choses in action which were transferred to him.20 Where the conveyance is only constructively fraudulent the grantee is entitled to reasonable compensation for his services in taking care of the property and selling it, whoever may be entitled to the net proceeds.21 Where the assignment of a claim for personal injuries

13. Loos v. Wilkinson, supra, but not at a rate higher than the legal rate which the incumbrance could have demanded; Weiser v. Weisel, 53 N. Y. Supp. 578, 5 N. Y. Annot. Cas. 196, but interest paid on a senior mortgage after a decree declaring the grantee to be a fraudulent transferee of the property, cannot be recovered by him in a suit to foreclose a junior mortgage; Brown v. Townsend, supra; Burne v. Partridge, 61 N. J. Eq. 434, 48 Atl. 770. But see Musselman v. Kent, 33 Ind. 452; Cooper v. Friedman, 23 Tex. Civ. App. 585, 57 S. W. 581, cases in which there was fraud in fact.

14. Loos V. Wilkinson, supra; Brown v. Townsend, supra.

15. Potter v. Gracie, 58 Ala. 303. 16. Loos v. Wilkinson, supra. See

Cooper v. Friedman, supra.

17. Loos v. Wilkinson, supra; Brown v. Townsend, supra; Lore v. Dierkes, 51 N. Y. Super. Ct. 144, 16 Abb. N. C. 47; Gardner Bank v. Wheaton, 8 Me. 373; Kickbusch v.

Corwith, 108 Wis. 634, 85 N. W. 148. See Davis v. Davis, 20 Or. 140, 25 Pac. 140, under Hill's Code, § 2874, which makes the expenses of the family chargeable on the property of both husband and wife, where a voluntary conveyance to the wife is set aside as fraudulent as to creditors, she is entitled to have a sum which had accrued as family expenses before the conveyance to her and which had been paid by her, allowed to her out of the first proceeds of the sale.

18. Loos v. Wilkinson, supra; How v. Camp, Walk. (Mich.) 427. But see Burt v. Gotzian, 102 Fed. 937, 43 C. C. A. 59; In re Strike, 1 Bland (Md.), 57; Cooper v. Friedman, supra.

19. Loos v. Wilkinson, supra.

20. Saugerties Bank v. Mack, 35 App. Div. (N. Y.) 398, 54 N. Y. Supp. 950; Muskegon Valley Furniture Co. v. Phillips, 113 Ala. 314, 21 So. 822.

21. Noyes v. Brent, 18 Fed. Cas. No. 10,372, 5 Cranch C. C. 551.

to an attorney is constructively fraudulent as to the assignor's creditors, the attorney is entitled to reasonable compensation for his services in collecting the claim.22 But a purchaser at a sheriff's sale under a fraudulent judgment entered for the purpose of defrauding creditors cannot claim compensation as trustee when required to account for the property so purchased.23

24

26

843. Compensation for improvements.-A party coming into possession of property by a fraudulent conveyance, and participating in the fraud, is not entitled to any allowance or reimbursement, for permanent improvements made by him on the property, after a bill has been filed against him by one claiming a superior title,25 or where he receives his conveyance after the filing of a lis pendens in an action by a creditor of his grantor. The tenant, with notice of the fraud, is not entitled to be allowed for improvements, under a statute, unless he files a claim therefor before verdict, in an action to recover the land as conveyed in fraud of creditors." After a judgment creditor had docketed his judgment, grantees of the judgment debtor put improvements on the land at their peril,28 and improvements made pending action are held not allowable.29 A fraudulent transferee is not entitled to allowance for expense of preparing for market the property transferred after it came into his hands,30 but a subsequent creditor is not entitled to the benefit of the improvements

22. Colgan v. Jones, 44 N. J. Eq. 274, 18 Atl. 55.

23. French v. Commercial Nat. Bank, 199 Ill. 213, 65 N. E. 252, aff'g 97 Ill. App. 533.

24. Milwaukee, etc., R. Co. v. Souter, 13 Wall. (U. S.) 517, 20 L. Ed. 543; Strike v. McDonald, 2 Har. & G. (Md.) 191; In re Stike, 1 Bland (Md.), 57; Annin v. Annin, 24 N. J. Eq. 184; Sherazee v. Shoastry, 6 Moore Ind. App. 27 19 Eng. Reprint, 11, 8 Moore P. C. 90, 14 Eng. Reprint, 35.

25. Gordon v. Tweedy, 74 Ala. 232, 49 Am. Rep. 813.

26. Shand v. Hanley, 71 N. Y. 319. But see How v. Camp, Walk. (Mich.) 427.

27. Livermore v. Rautelle, 77 Mass. 217, 71 Am. Dec. 708.

28. Flanary v. Kane, 102 Va. 547, 46 S. E. 312, 681.

29. Gordon v. Tweedy, 74 Ala. 232; Grandin v. First Nat. Bank (Neb. 1904), 98 N. W. 70.

Div. (N. Y.) 398, 54 N. Y. Supp. 950.

30. Saugerties Bank v. Mack, 35 App.

4

made by the fraudulent grantee nor to the increased rents and profits received by means of such improvements." Where a trustee makes, with his own money, improvements on trust property, for the purpose of defrauding his creditors, equity will not interfere further than to protect the trust fund.32 One in possession of land who is compelled to account with the creditors of the grantor, having the right to subject the land to the payment of their debts, is not chargeable with any increase of rent by reason of improvements made by him for which he is not allowed compensation. But where the grantee under a fraudulent conveyance accepted and acted on the conveyance in good faith, in ignorance of the grantor's insolvency, and without any intention of participating in the fraud, and made the improvements in good faith, equity will declare and enforce an allowance for such expenditure, on setting aside the conveyance at the suit of creditors. But no allowance for improvements made on the grantor's homestead could be made to the grantee, on the cancellation of a conveyance of lands of which the homestead was a part.

34

35

§ 44. Purchase of judgment against grantor.—Where the grantee in a fraudulent conveyance subsequently purchases a

31. King v. Wilcox, 11 Paige (N. Y.), 589.

32. Lathrop v. Gilbert, 10 N. J. Eq. 344.

33. Phillips v. Chamberlain, 61 Miss. 740.

34. U. S.-Corwine v. Thompson Nat. Bank, 105 Fed. 196, 44 C. C. A. 442; Voorhees v. Blanton, 89 Fed. 885, 32 C. C. A. 384, aff'g 83 Fed. 234, improvements made by grantee's partner who had no connection with the fraud.

Ala. Gordon v. Tweedy, 74 Ala.

232.

Ill-Walker v. Matthews, 58 Ill.

196.

Ky.-Rucker v. Abell, 47 Ky. 566,

48 Am. Dec. 406; Bartram v. Burns, 19 Ky. L. Rep. 1295, 43 S. W. 248, 686.

Md.-Williams v. Snebly, 92 Md. 9, 48 Atl. 43; Strike v. McDonald, 2 Har. & G. 191.

N. J.-Borden v. Doughty, 42 N. J. Eq. 314, 3 Atl. 352.

Ohio.-Romberger v. Turner, 13 Ohio St. 263, 82 Am. Dec. 438.

Pa. Skiles v. Houston, 110 Pa. St. 248, 20 Atl. 722; Skiles v. Nauman, 2 Lanc. L. Rev. 145.

Wis.-Evans v. Laughton, 69 Wis. 138, 33 N. W. 573.

35. McWilliams v. Thomas (Tex. Civ. App. 1903), 74 S. W. 596.

36

judgment against the grantor, a junior judgment creditor cannot disturb the grantee's title without paying, or offering to pay, such judgment. The assignment to the grantee of a judgment and mortgage constituting a lien on the property entitles him to be subrogated to the rights of the assignor, notwithstanding the fraud in his conveyance.37

45. Title subsequently acquired by grantee.-A fraudulent grantee of property may become the purchaser in a sale under an execution having a paramount lien, or acquire it from one purchasing at such sale, and thus acquire title which will prevail over subsequent creditors of the grantor asking to have set aside the conveyance in which he was grantee on the ground of fraud.38 But a reconveyance to the fraudulent grantee by one to whom he had transferred the property for the purpose of carrying out the original fraudulent design does not strengthen his title as against the orginal grantor's creditors, whether their debts occurred prior or subsequent to the fraudulent conveyance."

39

8 46. Rights of grantees as bona fide purchasers.-The owner of property can sell it and give a good title to a bona fide purchaser without regard to creditors until they obtain some lien upon it. A debtor may sell his property to pay his debts, and a

40

36. Brown v. Chubb, 135 N. Y. 174, 31 N. E. 1030, rev'g 55 Hun, 605, 8 N. Y. Supp. 61; Boggs v. Douglass, 100 Iowa, 385, 69 N. W. 689; Fordyce v. Hicks, 76 Iowa, 41, 40 N. W. 79; Daisy Roller Mills v. Ward, 6 N. D. 317, 70 N. W. 271.

37. Phillips v. Chamberlain, 61 Miss. 740.

38. Seals v. Pheiffer, 77 Ala. 278; Dimock v. Ridgeway, 169 Mass. 526, 48 N. E. 338.

Where a father purchased land and paid part of the purchase money, and conveyed it to his sons in fraud of his creditors, and the creditors afterwards

sold the land on execution as the property of the father, the sons, on paying the balance of the purchase price and securing a deed for the land, became substituted to the rights of the vendor; and the sheriff's vendees, who were substituted for the creditors, had no other right against the sons than they would have had against the vendor, and could not claim the entire land without tendering the balance of the purchase money and interest. Ogle v. Lichteberger, 1 Am. L. Reg. (Pa.) 121.

39. Brown v. Niles, 16 Ill. 385. 40. McMahan v. Morrison, 16 Ind.

bona fide creditor taking it in discharge of his debt for a fair consideration is entitled to hold it as against other creditors, although they lose their whole debts thereby." Where a grantee is a purchaser for an adequate and valuable consideration, without notice of a fraudulent intent on the part of the grantor to place his property beyond the reach of his creditors, he is a bona fide purchaser and acquires a good title and will be protected as against the grantor's creditors, notwithstanding the grantor's fraudulent intent," except to the extent that he has not paid the purchase money before notice of the grantor's fraudu

42

172, 79 Am. Dec. 418; Gillet v. Phelps, 12 Wis. 392. See alsoTM Fraudulent knowledge and intent of grantee, chap. XIII, § 4, supra; Rights and liabilities of parties, chap. XIV, § 1, supra.

41. Wilson v. Fawkner, 38 Ill. App. 438; Windmiller v. Chapman, 38 Ill. App. 276. See Consideration, chap. VIII, supra; Preferences, chap. XI, supra.

42. N. Y.-Van Wyke v. Baker, 16 Hun, 168; Starin v. Kelly, 36 N. Y. Super. Ct. 366; Third Nat. Bank ▼. Carnes, 5 N. Y. Supp. 799.

Ala-Taylor v. Branch Bank, 21 Ala. 581.

Ark.-Massie v. Enyart, 32 Ark. 251; Galbreath v. Cook, 30 Ark. 417; Christian v. Greenwood, 23 Ark. 258, 79 Am. Dec. 104.

Cal.-Priest v. Brown, 100 Cal. 626, 35 Pac. 323.

Colo.-Sickman v. Abernathy, 14
Colo. 174, 23 Pac. 447.
Ill.-Jewett

260.

V. Cook, 81 Ill.

Ind.-Dugan v. Vattier, 3 Blackf. 245, 25 Am. Dec. 105; Doe v. Horn, Smith, 242.

Iowa.-Deering v. Lawrence, 79 Iowa, 610, 44 N. W. 899; Aultman &

Co. v. Witcik, 60 Iowa, 752, 14 N. W.
357, and it is immaterial that the
grantee subsequently agrees to re-
convey the land to the debtor's wife
on repayment of the sum paid by him,
with interest.

Kan.-Bush v. Collins, 35 Kan.
535, 11 Pac. 425.
La.-Shultz
Ann. 616.

v. Morgan, 27 La.

641;

Mo.-Gleitz v. Schuster, 168 Mo. 298, 67 S. W. 561, 90 Am. St. Rep. 461; Forrester v. Moore, 77 Mo. 651; Rupe V. Alkire, 77 Mo. Dougherty v. Cooper, 77 Mo. 528. N. J.-Cole v. Lee, 45 N. J. Eq. 799, 18 Atl. 854.

Okla.-Jackson v. Glaze, 3 Okla. 143, 41 Pac. 79.

Pa.-Heath v. Page, 63 Pa. St. 108, 3 Am. Rep. 533.

R. I.-Tiernay v. Cleflin, 15 R. I. 220, 2 Atl. 762.

Va.-Paul v. Baugh, 85 Va. 955, 9 S. E. 329; Rixey v. Deitrick, 85 Va. 42, 6 S. E. 615; Scott v. Rowland, 82 Va. 484, 4 S. E. 595.

W. Va.-Lockhard v. Beckley, 10 W. Va. 87.

See also Fraudulent knowledge and intent of grantee, chap. XIII, § 4, supra.

« AnteriorContinuar »