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are properly made parties defendant to a suit for specific per-
formance, when their Joinder is necessary to a decree that will leave
oo part of plaintiff's title open to controversy or doubt.

Bill for specific performance. In March, 1882, plaintiff owned
timber land and a mill known as the '^Stark mill" property.
This was mortgaged to one Emery, who had foreclosed and was
in possession^ and the time for redemption had nearly expired.
Plaintiff herein applied to defendant Dole and one Soule, now
deceased, for assistance. Thpy agreed to redeem from the mort-
gage, and entered into the following agreement, signed by Soule

"Whereas, Edward Hickey has this day quitclaimed to Charles
E. Dole, of Bangor, Maine, and Gilbert Soule, of Northumber-
land, New Hampshire, all his real estate in the towns of Stark,
Milan, and Berlin.

"Now the said Dole and Soule agree, in case they fail to redeem
said property from the mortgage now existing upon the same,
to release said real estate to said Hickey upon demand, after the
drst day of April, 1882; and in case said Dole and Soule do re-
deem said property from the mortgage thereon, said Hickey
shall have the right to pay said Dole and Soule one-half of all the
advances made by them upon said property, and thereupon said
Dole and Soule are to release to said Hickey one undivided half
of said real estate.

"Dated this 20th day of March, 1882.


Plaintiff furnished Dole and Soule one thousand dollars, and
they used this and nine thousand five hundred dollars of their
own money to redeem the mortgage, taking a warranty deed from
the mortgagee April 28, 1882. Plaintiff continued to manage
the lumber business under an agreement with Dole and Soule,
and on February 20, 1886, brought this suit. Soule died in

Digitized by


Jane, 1890.] Hickbt v. Dols. 615

Januaiy, 1884, and Mb administrator and heirs were made par^
ties defendant to the bill.

Ladd ft Fletcher, F. Ladd, and Drew ft Jordan, for the plain-

E. A. ft C. B. Hibbard and W. ft H. Heywood, for Dole and

Dmmmond ft Dnimmond, for Soiile's administrator and heirs.

••^ DOE, C. J. The writing signed by Soule is a valid con-
tract, and if it had been signed by Dole, the statute of frauds
would not have been a defense. Letters written by Dole to the
plaintiff refer to and recognize the contract signed by Soule, and
the plaintiff's ''right to redeem the property.'' They contain the
substance of so much of that contract as is material in this case,
and they are as ^^^ effectiye as his signing the formal agree-
ment would have been: Brown v. Whipple, 68 N. K 229; Web-
ster V. Clark, 60 N. H. 36; Eafferty v. Lougee, 63 N. H. 64; Bar-
ren V. Joy, 16 Mass. 221, 223; Urann v. Coates, 109 Mass. 581,
684; Kingsbury v. Bumside, 68 HL 810; 11 Am. Bep. 67; Byaa
V. United States, 136 U. S. 68, 83; Forster v. Hale, 3 Ves- 696,
708, 709; 6 Yes. 808, 816; Browne on the Statute of Frauds,
sees. 7, 98, 99, 346, 346 b. They prove the plaintiff's "^ht to
redeem" at least one-half of the Stark mill property; and, as one-
half is all he claims, it is not necessary to inquire whether, as
against Dole, the letters show the plaintiff entitled to more than
half. His ^right to redeem,'' established against Dole by the
letters, is his right, established by the writing signed by Soule, to
have half of the propertj^ when he pays half of the advances made
by Dole and Soule. Both descriptions of this right mean that
the amount to be paid by him is to be ascertained by such an
equitable accounting as attends a mortgagor's exercise of his
right of redemption. On such an accounting the referee has
found a balance due the plaintiff.- When he receives that balance
and half of the land, the other half of the land will be the profit
of those who prevented a foreclosure. The plaintiff's right to
specific performance does not depend upon the mutuality of that
remedy: Eckstein v. Downing, 64 N. H. 248; 10 Am. St Bep.

Upon the facts found, it cannot be held as matter of law that
the suit was not seasonably brought. The plaintiff is entitled
to a conveyance from Dole and from Stuart who became a grantee
of some of Soule's heirs with notice of the plaintiff's rights.

Digitized by


616 Walker v. Walkkr. [N. H.

Scale's administrator was properly joined as a defendant. What*
ever may be the several obligations of the defendants to con-
tribute to the payment of the balance due the plaintiff^ Soule's
administrator and heirs may well be made defendants for the pur-
pose of a decree that will* leave no part of the plaintiff's land
title open to controversy or doubt. He is not bound to rely upon
the evidence relating to Stuart's acquisition of a part or the
whole of Soule's title.
Decree for the plaintiff.

Bingham, J., did not sit; the others concurred*

tract which comes within the statute of frauds can be extracted from
correspondence between the parties upon the subject of the contract,
the statute is satisfied: Austm v. Davis, 128 Ind. 472; 25 Am. St. Bep.
466, and note.

tract is not binding upon one of the parties when it is executed, yet if
it ^ves him an option to accept its terms, he may, by suit or otherwise,
waive the want of mutuality, and enforce specific performance of the
contract: South etc. B. R. Co. v. Highland Avenue etc. R. R. Co.,
98 Ala. 400; 39 Am. St. Rep. 74, and note, with the cases ooUeoted, show-
ing the conflict of authority.

Walker v. Walker,

[86 Naw Hampshire, 890.]

WIFE.— A transfer of personal property, which is a mere device or
contrivance by which the husband, not parting with the absolute
dominion over the property during his life, seeks at his death to de-
prive his widow of her distributive share of his estate. Is fraudulent
and void as to her.

MADE BY A HUSBAND during coverture for the purpose of defeat-
ing the wife's marital rights are fraudulent and void as against her.

has power to dispose of his personal property in good faith, by gift or
otlierwise, during coverture, free from all postmortem claims thereon
by his w^ldow.

Bill in equity by the widow of N. B. Walker to obtain her legal
share to his estate. Walker died, leaving a will by which he gave
one-third part of his estate to the plaintiff, and the remainder to
his two sons by a former wife. The defendant Mellen holds in
trust for these sons corporate stock and bonds valued at over
thirty-eight thousand dollars, delivered to him to be kept by
them by Walker in his lifetime. About ten years prior to his

Digitized by


June, 1890.] Walkbr v. Walker. 617

death. Walker purchased a honfie for six thousand five hundred
dollars, taking the deed in his name as trustee for his two
sons, and he and his wife occupied this house as his home-
stead unta his deatL Plaintiff did not know of the state
of the title to this house, and ddwer and homestead were
assigned to her out of it, she having waiyed the provisions
made for her in her husband's will. Upon dlBCoyering the
state of the title, she amended her hill so as to daim
a share in that property. This claim was denied. Mellen, as
trustee, always acted in managing the estate for the sons under
the father's direction, and they did not know the amount and kind
of securities held by the trustee for them until their father^s
death, and the gift was not intended to take effect until his death.
The court below ruled that the trustee should pay to the plaintiff
one-third of the yalue of the property in his hands, or that he de-
liver all of such property to the executor to be administered as
part of Walker's estate. The defendants excepted.

Chase ft Streeter, for the plaintiff.

W. L. Foster, for the defendants.

*^ BLODGETT, J. Upon the facts found at the hearing,
the bill can be maintained. The attempt of the plaintiff's hua-
band to dispose of nearly all of his personal estate, so that he
should have the enjoyment and confarol of it for life, and the
plaintiff be deprived of any portion of it at his decease, cannot be
sanctioned. It is settled law that conveyances of real estate
made by the husband during the coverture for the purpose of de-
feating the wife's rights, are, as to her, fraudulent and void.
Whether the same rule obtains in transfers of personal property
for the like purpose, when the husband reserves therein no right
to himself, is a question upon which the authorities are somewhat
at variance; but where the transfer is a mere device or contrivance
by which the husband, not parting with the absolute dominion
over the property during his life, seeks at his death to deprive his
widow of her distributive share, there is no substantial conflict of
authority that the rule applicable to conveyances of realty pre-
vails: Thayer v. Thayer, 14 Vi 107; 39 Am. Dec 211; Hays v.
Henry, 1 Md. Ch. 337; Babbitt v. Gaither, 67 Md. 95, 100, 106;
Littleton v. Littleton, 1 Dev. ft B. 827; McGee v. McGee, 4 Ired.
106; Davis v. Davis, 6 Mo. 183; Stone v. Stone, 18 Mo. 889;
Tucker v. Tucker, 29 Mo. 350; Smith v. Smith, 12 Cal. 216, 225;
78 Am. Dec. 633; Lord v. Hough, 43 Cal. 681; CJranson v. Cran-

Digitized by


«i& WAUCfiB V. Walker- [N.H.

con^ 4 Mich. 230; 66 Am. Dec. 534; Holmes y. Holmes, 3 Paige,
363; Bicharda t. Bichards, 11 Humph. 429; Petty t. Petty, 4 B.
Men. 215; 39 Am. Dec. 501.

Such, also, were the deciaiona under the amdent custom of I/m*
don, from which our statute of distributions is said to have been
borrowed. Thus,inHaUy.HaU,2 Vem. 277,it washddthatif
a freeman gives away goods in his lifetime, and yet retaias the
deed of gift in his own power, or retains the possession of the
goods or any part of them, it is a fraud upon the custom, and will
not conclude the widow; and in Fairebeard y. Boweii, 2 Yern.
202, a voluntary judgment by a freeman, payable aft^ his death,
was postponed to the widow's claim for her customary share. So,
in City v. City, 2 Lev. 130, where the deceased had by deed »-
signed a term to his son, and the son had gone into possessioii,
it was held that this did not bar the widow of her customaij
share, the assignment being without consideration; and it was
said: "The same is the law as to goods." And Edmundfion v.
Cox,7 Yin. Abr.203,is of the like general purport That case wai
a bill by *^ the widow of a freeman of London for her cus-
tomary share. The husband had made his will and devised to
the wife certain real and personal estate. There was, sealed up
in the will, the bond of the testator, executed before the date of
the will, conditioned to pay the d^endant a given sum of money,
or transfer to him a given amount of bank stock. The obligee
was the testator's nephew, and the bond without valuable con-
sideration. It was held by the master of the rolla that the widow,
on first disclaiming all benefit under the will, could have a decree
for her customary share, and that the bond should not stand in
her way; and he adds: ''Such sort of contrivancea to evade the
custom have always been set aside in this courf ': See, also, Smith
V. Fellows, 2 Atk. 62, and Coomes v. Elling, 3 Atk. 676. These
decisions well illustrate what should be the course of decision
under our statute. The widow's claim for her share under the
statute being strictly analogous to the claim of the widow of a
freeman under the custom of London, if a contrivance to efade
the rights of the widow under that custom was never tolerated,
there is no reason why it should meet with more favor under the

By the declaratory statute of 13 Elizabeth, chapter 5, made
perpetual by 29 Elizabeth, chapter 6, and adopted as part of the
common law in this state, for avoiding feigned, covinous, and
fraudulent feoffments, gifts, grants, alienations, conveyances,

Digitized by


Jnoa, 189a] Walk£& v. Walksb. 619

bondsi miM, jndgmentSy and executions, as wdl of lands,
mente, and hereditaments as of goods, chattels, wares, and mer»
ehandise, which f eofiEments, etc., have been deyiaed of malice,
fraud, coYin, coUufiion, or guile, to the end, purpose, and intent
to delay, hinder, or defraud creditors and others of their just and
lawful actions, suits, debts, accounts, damages, etc., not only to
the let or hindrance of the due oourae and execution of law and
justice, but also to the overthrow of all true and plain dealing,
etc, it was declared and enacted in the second section, ''that ail
and ereiy feoffment, gift, grant, alienation, and conveyance, and
all and every bond, suit, judgment, and execution, to or for any
intent or purpose before declared and expressed, shall be from
henceforth deemed and taken,'' as against such creditors and
otheiB snd their representatives, '^ be utterly void and of none

There is no ground to claim, and no claim is made by the de-
fendants, that the act of the plaintifiPs husband in relation to the
stocb and bonds comes within the proviso in the sixth section,
exempting from the operation of the act transactions upon a good
consideration and bona fide; but it is contended that the plaintiff
is not within the act as a creditor, and therefore is not within its
protection. Technically, and in a strict legal sense, she may not,
perhaps, be a creditor; but "the statute, by the words 'creditors
and others,' embraces others than those who are strictly and tech-
nically creditora. Even the word 'creditor' does not receive a
strict definition, for a party who is not strictly speaking a credi-
tor *>* may stand in the equity of a creditor, and have an inter-
est that may be defrauded. .... The character of the claim, if
it is just and lawful, is immaterial .... and a contingent claim
is as fidly protected as one that is absolute": Bump on Fraudu-
lent Conveyances, 2d ed., 491, 492. Tinder this construction of
the statute, which is fully supported by the decisions, it is not
open to reasonable doubt that the plaintiff comes within its pro-
tection. The character of her claim is just and lawful in the
highest degree; she stands in the equity, if not in the attitude, of
a creditor; she is as much injured as any creditor can be;
and the fact that at the time the securities were transferred her
•iistributive right therein was contingent entitles it none the less
to protection than if it had been absolute. And this should be
60. Marriage is equivalent to a pecuniary consideration; that is
to say, it is a valuable consideration. The plaintiff's right to her
iistributory share of her husband's large estate, and which ii

Digitized by


620 Walkbb f. Walksr. [N. E

quite likdy to lum been one of the inducements to ber marriage
with him, ie therefore in the nature of an actual pnrchaae of that
righty and may well be given the same eff ect» nnder the libaal
and beneficial constniction which the statute is entifled to re-
ceive for the suppression of frauds the advancement of justice,
and the promotion of the public good.

But however this may be, inasmuch as the design of the statute
obviously was to embrace others than thoee who are crediton in a
strict and technical sense, we think that under its designation of
''creditors and others'' the plaintiff is fairly included; ^and if,'
in the language of Mason, J., in Feigley v. Feigley, 7 Md. 537,
Gl Am. Dec. 375, ^'under such a comprehensive clause as 'aedit-
on and others^' a wife who has been made the victim d her
husband's fraud is not to be included, we are at a loss to aacertain
to whom it was designed to relate." The same or equivalent
statutory language is also held to apply to and indude the de-
frauded wife, in Tyler v. Tyler, 126 lU. 526; 9 Am. St Bep. 642;
Green v. Adams, 66 Vt. 602; 69 Am. Rep. 761; Jiggittsv. Jiggitts,
40 Miss. 718; Beynolds v. Vance, 1 Heisk. 844; Boils v. Boils, 1
Cold.287;Brewerv.Connell, 11 Humph. 600; Killinger v. Beidcn-
hauer, 6 Serg. & B. 631; Bouslough v. Bouslough, 68 Ru St 495,
499; Johnson v. Johnson, 12 Bush 485. And if it were even held
that the statute does not include the plaintiff, either as a cieditor
or as one to whom the conveyancer owes a lawful duty in respect
of his property which he fraudulently attempts to avoid, it would
not leave her remediless under the common law, which is still in
force. "As the act is merely declaratory, resort may always be
had to the principles of the common law, whenever the statute
fails to reach a case of fraud. The act itself is not aSected bj
this doctrine, and will, in general, be received as a tme declara-
tion of what the law was; but wherever the statute is ineffectlTe.
either through a change of custom, or the introduction of a new
kind of property, or the concoction of some new device, there
the common law intervenes "^ with its pure and devated pn&-
ciples of morality and justice, and enforces the dictatea of com-
mon honesty and common sense^: Bump on Fraudulent Contej-
ances, 11.

But irrespective of the statute and the common law, the obli-
gations and duties of husbands and wives to each other disable
each of them alike successfully to defraud the other by each a
disproportionate, unreasonable, and fraudulent transfer of prop*
erty as appears in this case: Laton v. Balcom, 64 N. H. 98, 94-96;

Digitized by


Jone^ 1890.] Walker v. Walksb. 621

10 Am. Si Bep. 381; and upon general principles of equity ilost
the plaintiff's bill may be supported. It is an established mle
that a husband will, upon a proper ease being made out, be le-
fltnined by injunction from transferring property in fraud of the
legal or equitable rights of the wife: 2 Stoic's Equity Jurispru-
dence, 12ih ed., sec. 955; Kerr on Injunctions, 2d ed., 534, and
cases dted; Eden on Injunctions, 295, 296; and if such transfen
are made, equity puts her on the same footing with a creditor who
finds himself hindered, delayed, or defrauded by his debtor.

With these yiews of the transaction, the plaintiff is entitled to
her distributive share of the stocks and bonds, as if no transfer
of them had been made or attempted. If, however, the transfer
was not fraudulent as against her, the same conclusion follows.
The gift was not perfected. It was not valid as a gift inter vivoa,
for that goes into absolute and immediate effect, the donor part-
ing not only with the possession, but, with the dominion of
the property; nor as a donatio causa mortis, for the securities
were not deUvered by the deceased in his last sickness, nor when in
any particular peril of death, or under any special apprehension
of such peril: Craig v. Kittredge, 46 N. H. 57, and authorities

As to the house occupied by the plaintiff and her husband as a
homestead, a different case is presented. At the hearing, the
plaintiff moved to amend her bill so as to claim a one-third part
of the homestead premises; but the claim was denied, on the
gronnd that at the time her husband took the homestead deed
as tiustee for his sons, he had ample means remaining for a suit-
able provision for the plaintiff — to which denial she excepted.

If the purpose which prompted the husband's act was not to
defraud the plaintiff, but a desire to make a reasonable provision
for his minor children, whose interests it was his duty to guard
and protect, it would be a misnomer to call the transaction
fraudulent, and it must be allowed to stand. In such cases the
facts are always open to inquiry, "and it seems settled that the
court is warranted in considering such circumstances as the
meritorious object of the conveyance, and the situation of the
husband in point of pecuniary means*': Schouler's Domestic Eo-
lations, 270. And this is right and reasonable. Marriage does
not debar a man from all right to dispose of his property during
his life according to his will and pleasure. On the contrary,
"nothing is better settled than the power of a husband to dispose
of his personal property in good faith, by gift or otherwise.

Digitized by


622 Walker v. Walker. [N. H.

during coyextare, free from all postmortem '^ claims thereon
by hia widow": Dickereon'a Appeal, 115 Pa. St 198; 2 Am. St
Bep. 647, 552. It aimply debars him from making gifts and ooa-
?eyance with the yiew of defeating his wife's marital rights^ and
to this extent only is lus power of disposal dogged and f ettoei
When hiB object is not to defraud her, he may therefore lawMj
sell or convey, and he may ^ven make a gift of his property for
any lawful purpose. If possessed of large estate, the voluntai?
conveyance of a small portion of it to a stranger would scarcely
be deemed fraudulent as against her; and if the conveyance is to
his children by a former marriage, and he retained that which
would, in the ordinary course of events, be ample provinon for
himself and wife and family, there surely would be no fraud npon
her marital righto cognizable in equity: See Butler v. BnUer,
21 Kan. 521; 30 Am. Bep. 441, 446, and authorities generally.

Taking into consideration Mr. Walker's pecuniary drcnm-
stances, the comparatively small amount invested in the home-
stead trust estate with reference to the entire amount of his prop-
erty, the meritorious claims of lus children, as such, upon him,
and the pregnant fact that this trust was created long before hii
estrangement from the plaintiff, we are of opinion that the pro-
vision made by him for his children was, under the existing cir-
cumstances, a just and reasonable one, that no fraud upon the
plaintiff was intended, and that her claim for a share of the home-
stead estate was properly denied.

Exceptions overruled.

Doe, C. J., and Allen, J., did not sit; the others ooncoired.

WIFE.— A husband may dispose of his personal property by volontarr
gift, during the coverture, without his wife's consent, freed from evert
postmortem claim by her. She cannot after her huslMuid's death asnu
such gift as being in fraud of her rights: Lines v. Lines, 142 Pa. 8t. 149;
24 Am. St. Rep. 487, and extended note. The inchoate right of dower
possessed by a wife in the lifetime of her husband is such an interest io
his realty as entitles her to maintain an action in equity to cancel ot
record, so far as she is concerned, a deed of the husband purporting to
be executed by the wife also, on the ground that, so far as she is con-
c*^med, it is a forgery: Clifford v. Kampfe, 147 N. Y. 883. A nan
about to marry may convey a reasonable portion of bis property to his
children by a former wife, and such conveyance will not beaeemw
fraudulent as to the second wife: Einne v. Webb, 54 Fed. Bep.^3j[
The same doctrine was laid down in Alkire v. Alkire, 1S4 Ind. S^h?,
where it was further held that if renresentations were made as an in-
ducement for the wife to enter into tne contract, or if agreements inth
the wife were viola* ed, or conveyances made on the eve of the marnaw
under certain circumstances, so as to operate as fraud, a conveyance
under such con<litions would be set aside and the wile gimnted ber in-
terest in the estate. |

Digitized by


Deo. 1890.] Stibn v. McQuadi. 62ft

Stirn V. MoQuADB.

[66 NSW HaMPSHIRR, 408.]

ZEN OF ANOTHER STATE.— A discharge in insolyency granted by
a court of one state to one of its citizens is not a bar to an action in
that state by a citizen of another state, who has not voluntarily sub-
mitted himself to the Jurisdiction of the court in the insolvency pro-

Assumpsit for goods sold and deliyered. Judgment for plain-
aSs, and defendants excepted.

Drury & Peaslee, for the plaintiffs.

D. F. O'Connor^ Sulloway & Topliff, and J. K Biedell, for the

^^ CLABK, J. It is settled that the insolvent law of one
state has no effect in another state against the citizens of the lat-
ter holding claims that follow the person of the creditor, unless
they place themselves under the jurisdiction of the law by volun-
tarily becoming ^^ parties to the insolvency proceedings: Per-
ley V. Mason, 64 N. H. 6; Carbee v. Mason, 64 N. H. 10; Dunlap
V. Rogers, 47 K H. 281; 93 Am. Dec. 433; Newmarket Bank v.
Butler, 45 N. H. 236; Baldwin v. Hale, 1 Wall. 223; Gilman v.
Lockwood, 4 Wall. 409; Denny v. Bennett, 128 U. S. 489. The
plaintiffs, being citizens of New York, were not under the juris-
diction of the insolvent law of this state, and not having in any

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