This is a writ of entry brought under ‘the provisions of Revised Laws, Chapter 178, Section '47, by a purchaser at execution sale to recover possession of land specially attached by him as fraudulently standing in the name of Anna Begaso, since deceased, under whom all of the tenants claim title by inheritance in addition to a claim of homestead made by Manuel P. Begaso individually.
On September 13, 1902, the defendant Manuel P. Begaso was seized of the demanded premises, which constituted his home in Gloucester and was the only property which he then had. He had bought the place some years before with his own money and had partially paid off the outstanding mortgage on it. On that date, September 13, 1902, said Manuel committed an assault upon one Monize. On the same day, and immediately following the assanlt, he retained counsel. On September 19th he executed a mortgage to his counsel as security for professional services, and on the 20th, .by advice of counsel and for the purpose, as he testified, of putting his property in his wife’s name in snch a manner that “ I can stay in the house,” he executed a declaration of homestead under the statute, and also a conveyance through a conduit without any pecuniary consideration and expressly subject to the homestead, to his wife the said Anna Begaso. On October 7th the property was specially attached in an
Two points have been made by the defense. Rirst, that the conveyance to the wife was not fraudulent against the plaintiff, the liability to damages arising from the assault on Monize not constituting the latter a creditor against whom a voluntary conveyance can be deemed to be a fraud. I find that both the conveyance and the homestead declaration were made for the purpose of placing this property out of the reach of any claim growing out of the assault which had been committed against Monize. There is some divergence of decision in this country on whether claims for damages arising from torts are within the protection of the statutes against fraudulent conveyances, and there is hot much law on the subject in this state. I rule that the conveyance was fraudulent as against Monize and those claiming under him, and that the demandant is entitled to judgment in this action. Livermore v. Boutelle, 11 Gray 217; Leonard v. Bolton, 163 Mass. 428. (Note:—And see Shepherd v. Shepherd, 196 Mass. 179.)
The second point is that the tenants are nevertheless entitled to the benefit of the homestead, the execution not having been levied “ for a’ debt contracted ” before the writing required by section 2 of R. L. Chapter 131, was recorded; see R. L., Chapter 131, Sec. 4. There seems to be even less law with regard to this. The matter of homestead is one of public policy rather than of private right, established by statute for the protection of the family, and which, like the similar estate of dower, can only be barred in the specific
So ordered.