
    The Inhabitants of Canton vs. The Inhabitants of Dorchester.
    A husband, who for three years successively occupies land assigned to his wife ns dower, obtains a settlement by virtue of St. 1821, c. 94, and Rev. Sts. c. 45, § 1.
    The occupation of an estate of freehold by the grantor, after a conveyance thereof which is fraudulent and void as against creditors, is not sufficient to gain a settlement under the fourth mode provided in the Rev. Sts. c. 45, 6 1, although he has a bond for a reconveyance from the grantee.
    This was an action of assumpsit, to recover for the expenses incurred by the plaintiffs in the' support of one Edward A. Capen, a pauper, in the State lunatic hospital. The only question was, whether the pauper’s settlement was in Canton or Dorchester. The case was tried in the court of common pleas, before Byington, J.
    The pauper was born on the 24th of July, 1822, and derived his settlement from his father, Ephraim Capen, who, it was admitted, had his settlement in 1821, in the town of Dorchester.
    It was admitted, by the plaintiffs, that Mille Billings, the widow of Otis Billings, deceased, had her dower in his estate assigned to her in April, 1821, in pursuance of a warrant from the probate court; that the estate so assigned to her as dower was situated in Canton; that she was married to Ephraim Capen early in October, 1821; that, from that time until the decease of Ephraim, on the 3d of June, 1840, she resided with her husband on the dower estate; that, in the years 1822, 1823 and 1824, Ephraim Capen paid the taxes assessed thereon; and that Mille Capen continued to reside on the same from the death of Ephraim to the time of the trial.
    The plaintiffs then put in evidence a deed of the dower estate from Ephraim and Mille Capen to Jonathan Capen, the father of the latter, bearing date the 25th of June, 1822, and recorded on the 28th of the same month.
    The defendants thereupon introduced evidence to prove that Jonathan Capen paid no consideration for the conveyance, and that it was made to protect the estate from being attached by the creditors of Ephraim, who was insolvent. The defendants contended, that Jonathan Capen gave back to the grantors a writing under seal of the same date with the deed, (which writing was never recorded,) reciting the deed from Ephraim and Mille to him, acknowledging that the conveyance was made for their benefit, and agreeing to re-convey the estate to them on demand. This instrument was not produced; but the defendants offered secondary evidence of its contents, the particulars of which are not material to be stated.
    The judge instructed the jury, that if Jonathan Capen paid no consideration for the deed to him of the 25th of June, 1822, but that conveyance was made to him to keep the estate from the creditors of Ephraim, and for his benefit, and if such an instrument of reconveyance was executed under seal simultaneously with the deed to Jonathan, then it was such an equitable estate of freehold, that Ephraim acquired a settlement in Canton, by three years’ residence thereon subsequent to the year 1821.
    The jury found that the paper in question was executed and delivered simultaneously with the deed from Ephraim and Mille to Jonathan Capen; and a verdict being thereupon returned for the defendants, the plaintiffs excepted.
    
      E. Ames, for the plaintiffs.
    
      A. Churchill, (with whom was J. J. Clarke,) for the defendants.
   Metcalf, J.

The defendants rightly suppose that this pauper’s settlement follows that of his father. And they attempt to show that his father acquired a settlement in Canton, by virtue of the provision in St. 1821, c. 94, and the Rev. Sts. c. 45, as heretofore construed and applied by the court. That provision is, that any person of the age of twenty-one years, being a citizen of this or any other of the United States, having an estate of inheritance or freehold in any town within the state, and living on the same three years successively, shall thereby gain a settlement in such town.” Under this provision, a citizen who has a freehold in right of his wife, in land assigned to her as dower, has been held to gain a settlement ; Windham v. Portland, 4 Mass. 384; also a citizen who is cestui que trust of an estate of inheritance or freehold. Orleans v. Chatham, 2 Pick. 29; Scituate v. Hanover, 16 Pick. 222. It is on these last two cases that the defendants principally rely. But it does not appear, in either of those cases, that the trust was unlawfully created. That does appear in the present case. The deed of Ephraim and Mille Capen to Jonathan Capen was without consideration, and was fraudulently made for the purpose of delaying and hindering Ephraim’s creditors. This was an alienation of his freehold, by an executed contract, which nobody besides his creditors could draw into question. No trust can arise from such a conveyance merely. Not for the grantors nor their hens; because against them the conveyance is valid, and they can never reclaim the granted property, nor any interest in it: Not for creditors; because against them the conveyance is void, and they may seize the property itself. If the instrument that was given back by Jonathan Capen, and which the defendants suppose to have raised a trust, was legally proved by secondary evidence, (a point which we need not decide,) yet it was an executory contract, founded on a fraudulent transaction; and no court of equity would enforce it on the application of the grantors. Batten on Specific Performance, Book 1, c. 9; Lewin on Trusts, 165, 167, & cases there cited; Battersby v. Smyth, 3 Madd. 110; St. John v. Benedict, 6 Johns. Ch. 111 ; James v. Bird's Administrator, 8 Leigh, 510. Nor would a court of law sustain an action on it. We are therefore of opinion that this instrument did not constitute a trust estate of freehold in Ephraim Capen, sufficient to give him a settlement." New trial granted.  