16 N.Y.S. 493 | N.Y. Sup. Ct. | 1891
These are appeals by defendants from judgments on the report of a referee. The actions arise out of the transactions which were the subject of controversy in McDonald v. McDonald, (Sup.) 11 N. Y. Supp. 248; and these actions, like that, were brought by a judgment creditor to set asL.e conveyances alleged to he fraudulent. The plain tiff sought to recover
The only question of importance, then, is whether these transfers and conveyances to Carrie S. were valid against the plaintiff. In 1871 the firm of I. C. Shuler & Co. was composed of Isaac C. Shuler, Maria MacDonald, and Augustus Clark. It so continued till 1888, when Clark’s interest in the business, being three-tenths, was bought by Maria MacDonald and Shuler, and they gave thereupon a note of $5,000 to the plaintiff’s (Clark’s) wife, on which note the judgment in the first suit was recovered. The judgment in the second suit was also on notes amounting to $1,075, made by said Maria MacDonald and said Shuler. In 1888, Maria MacDonald sold out to Shuler. He agreed to pay her an annuity of $800 a year for three years, (which is the annuity contract,) and Shuler agreed to pay all the partnership debts. The referee refused to find that the firm was then solvent, and that Shuler had considerable property outside of the firm. The three notes above mentioned are stated in the referee’s opinion to be firm notes of I. C. Shuler & Co. The counsel for the appellants seek to distinguish these cases from that above referred to, on the ground that these were firm debts; that Maria MacDonald had reasonably provided for their payment by her transfer of her interests in the firm to Shuler, and by his agreement to pay these debts; that she had thus become a quasi surety, and Shuler the principal debtor; and that, under these circumstances, the voluntary transfer of her property to her daughter should not be held fraudulent. Of course, unless the firm was in fact solvent, or Shuler had property outside, there was nothing in the agreement which gave plaintiff any protection; and, in any event, plaintiff acquired no .additional security. When Maria MacDonald went out of the firm, Shuler and the firm property were already liable; and his agreement to pay the firm debts was only a matter between himself and the outgoing partner. Even if .Shuler had at that time property outside of the firm, that property was already liable for his debts. So that in no way did Maria MacDonald, when she went out of the firm, increase the plaintiff’s security. It is further evident that the prosperity of the firm had fallen off largely before this time.
It is well settled, under our statute, that in such cases the question of fraudulent intent is generally one of fact. The referee finds as fact in this case that the several transfers were made with intent to hinder, delay, and defraud plaintiff, and were accepted by Carrie S. with the distinct understanding that she was to hold and manage the same for said Maria MacDonald. And we see no reason to doubt the correctness of this conclusion. The transfers were without consideration, and they transferred all the property of Maria MacDonald. Carrie S. herself says she took this property to manage it for her mother, and is managing it for her. This is-plainly not the case of a gift to a child, reasonable in amount compared with the property of the parent. The appellants claim that, even if Maria MacDonald transferred this property to Carrie S. with intent to defraud some creditors, yet the transfers were not void as to the plaintiff, because she was (as-they claim) secured by Shuler’s agreement to pay the firm debts. We have already seen that she
The appellants urge that, as the plaintiff did not succeed in respect to the Main-Street property, the referee should not have allowed costs against them in each action. No appeal is taken by the plaintiff in respect to the judgment as to this Main-Street property; yet there are circumstances which cast suspicion on the conveyance of that property. It was without consideration. The deed was not recorded for four years. Taxes, etc., were paid out of Maria’s money. Fortunately for the defendants, the referee decided that the • conveyance was not with intent to defraud creditors. But we think that the defendants’ success in that respect does not make their position so meritorious that they should escape paying costs. Judgment affirmed in both cases, with costs against defendants personally. All concur.