Brackett v. Watkins

21 Wend. 68 | N.Y. Sup. Ct. | 1839

By the Court,

Cowen, J.

The first of the grounds taken by the defendant’s counsel in the court below is now given up as erroneous, on the authority of Hall v. Penney, 11 Wendell, 44. By this case the words of the statute were equitably extended beyond their literal import, and made to cover cloth, yarn, &c. whether it comes from the sheep of the owner or not.

Nor can I perceive any force in the other points, 'when taken in the abstract. It was pretty evident that the plaintiff had reduced himself to the 30 runs, and had no more. Being a householder, the statute conferred upon this the same protection, whether the plaintiff had before owned but 10 or 1000 sheep. I say in the abstract. Very likely the court below were disgusted with the strong appearance of a fraud upon the statute, by a man disposing of, or covering up all his other property, and turning what was intended as a shield of poverty into an instrument of fraud. It is quite common for dishonest men to do so. But I think the court below have mistaken the remedy. If there be an appearance from circumstances that the plaintiff has reduced himself to exempt property, in order to defraud his creditors, that question should be submitted to the jury, under proper directions from the court. Their sagacity would be, in general, quite a match for the case. On their being satisfied that the plaintiff had placed himself on his exempt property in order to defraud his creditors, as in the instance below, by a sale of his sheep and wool, they may clearly place him beyond the reach of the statute, by sustaining the levy. His sales or other arrangements would come within the words of the statute, 13 Elizabeth, being to delay, hinder or defraud creditors; or, if not, they would be void at the common law. The rule, then, is this : prima facie the fleeces, yarn, cloth, and other things limited to a certain amount by the statute, 2 R. S. 290, § 22, are protected. But if the jury believe that it was brought down to the compass of exemption, with intent to defraud creditors, they ought to find tor the creditor. Most commonly, the other goods being mortgaged or sold, remain still in the debtor’s possession, when either they may be seized, or those which are apparently exempt, at the election of the creditor. In general, the mortgaged or sold goods are seized. But the more artful debtor will fix a more secure cover for his property, by changing it into money, or something as little tangible to an execution as may be, when the property claimed as exempt must be resorted to, and the question of fraud litigated upon that. On such obvious fraud as possession after a mortgage or sale, the court may doubtless nonsuit, or direct the jury to find the covin, since the statute has declared the possession to be conclusive evidence where it is not satisfactorily explained. Not so of more equivocal instances. On these the question is, in general, for the jury. We think it should have been put to them in the case before us.

The judgment must therefore, be reversed, and a venire de nova go from the court below, the costs to abide the event.