61 N.J. Eq. 434 | New York Court of Chancery | 1901
This is a bill by a judgment creditor to set aside as fraudulent a conveyance of his lands made by the debtor to a prior mortgagee, and also to set aside the mortgages as fraudulent. The conveyance to the mortgagee was expressly declared to be without merger of the title under the mortgages. The bill was filed fifteen years after the recovery of the «¡judgment, and asks an accounting of the rents and profits from the time of the conveyance. My conclusions upon the questions raised and argued at the hearing are as follows:
First. The deed from Margaret Flynn, the judgment debtor, to defendant Partridge must be held to be fraudulent and void as against complainant’s judgment. The principal facts appearing in the evidence which indicate that the conveyance was a fraud on creditors are: (1) That the conveyance was made pending complainant’s suit and before the recovery of his judgment. (2) The conveyance was by quit claim deed, made without any consideration actually paid by the defendant Partridge, the grantee, who also held mortgages on the premises, the result being that, as to all value in the property over and above the amount due on his mortgages, the conveyance was purely voluntary, and therefore void, to that extent, as against existing creditors. (3) The insertion in the deed of an unusal clause, ■viz., a clause providing that the mortgages should'not merge in the title conveyed by the deed. This indicated that the transaction was not substantially a purchase of the equity of redemption, but a transfer of the legal title for some other purpose, and that the grantee had some reason to doubt the validity of the title by deed. No feature appears in the ease to affect the validity of the title by deed, except a possible attack by creditors. (4) The arrangement made between the grantor and grantee, that the grantor might redeem the property on' paying the
Second. The mortgages held by the defendant have been satisfactorily shown to have been based upon loans of money made, for the most part, if not altogether, to take up prior mortgages on the property, arid complainant’s judgment must be subject to the liens upon these mortgages for the amount due thereon. Independent of the express provision in the deed, that the mortgages should not be merged in the estate • created by the deed, this would be the effect, upon the defendants’ estate in the lands under the mortgage, of setting aside the deed as fraudulent against a creditor. 2 Big. Fraud. 416 § 5; Malloney v. Horan, 49 N. Y. 111, 121 (1872); Roberts ads. Jackson, 1 Wend. 478, 484 (1828).
Third. The complainant’s remedy to set aside the deed as fraudulent is not barred by the delay in filing the bill. The reasons for this conclusion were given in the conclusions filed on the' demurrer to the amended bill, which specially raised this question. I then concluded that inasmuch as the complainant was appealing to this court, not to. establish and enforce a merely equitable right, but to aid in the enforcement of a legal right under a judgment still outstanding, mere delay, where the delay has not been sufficient to bar the legal right, is not sufficient to bar the right to apply for equitable aid in enforcing the legal right. In addition to the case referred to in my conclusions then filed (Banking Company v. Maddever, 52 L. J. Ch. 733; S. C. on appeal, 27 Ch. Div. 528, which was