LOUIS H. CASSON & another, trustees, vs. NICHOLAS PETRELLIS & another.

SPIEGEL, J. This is a bill in equity in which the plaintiffs seek to reach and apply the equity in certain properties in the name of one defendant in satisfaction of a judgment against the other defendant. The plaintiffs have appealed from a final decree dismissing the bill. The evidence is reported.

On June 24, 1960, the plaintiffs, as trustees of the 224 Tremont Street Realty Trust, recovered a judgment, with costs, against Nicholas Petrellis in a total amount of $1,689.96. Thereafter, the defendant Nicholas Petrellis was examined by counsel for the plaintiffs in a hearing held at the First District Court of Eastern Middlesex. Subsequently, the plaintiffs filed this suit in the Superior Court alleging that "Nicholas Petrellis has placed the aforementioned property in his wife's name to avoid creditors from attaching the same to satisfy claims against him."

There was evidence that at the hearing on supplementary process, Nicholas Petrellis testified to the purchase by him, in 1946 and 1953, respectively, of two pieces of real estate in

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Everett, and "that on the advice of counsel he had put the property in his wife's name because he owed a lot of creditors at that time." At the conclusion of the testimony the trial judge made "Findings and Order for Decree" which reads in part: "It did not appear in the evidence and I am unable to find that at the time of the purchase of the property . . . Nicholas owed any creditors, and particularly the . . . [plaintiffs]. If it be admitted that he made such a statement, it is uncertain whether he meant to put the property beyond the reach of future creditors or whether it was intended to hinder and defraud present creditors, and as against the present . . . [plaintiffs] it did not appear in the evidence that the conveyance was made to defraud them."

In view of the testimony above referred to it was error for the judge to find that "[i]t did not appear in the evidence . . . that at the time of the purchase of the property . . . Nicholas owed any creditors . . .."

It was also error to draw the distinction between present and future creditors. General Laws c. 109A, Section 7, states: "Every conveyance made and every obligation incurred with actual intent, as distinguished from intent presumed in law, to hinder, delay or defraud either present or future creditors, is fraudulent as to both present and future creditors" (emphasis added). David v. Zilah, 325 Mass. 252, 256.

Accordingly the decree must be reversed and the case is to be further heard in the Superior Court in conformity with this opinion.

So ordered.