| N.J. | Mar 3, 1924
The bill of complaint filed in this case seeks to set aside a conveyance made on December 20th, 1921, by Frank E. Hopping, to his'brother Wallace Hopping, conveying to the latter certain real property in Hanover township, Morris county, upon the ground that the conveyance was made for the purpose of hindering and defeating the creditors of Frank E. Hopping, and in particular Wilfred E. Petry and Livingston Petry, judgment creditors, and that such conveyance was without valuable and sufficient consideration.
The principal attack made on the soundness of the decree in the court below is that the testimony given by Wallace V. Hopping and'his brother in support of the lona, fides of the transaction between them is improbable and, for the reason suggested, should have been disregarded by the vice-chancellor, and should likewise be disregarded here in considering the merits of the case.
This contention is without legal support. In Berckmans v. Berckmans, 16 N. J. Eq. 122, Chancellor Green (at p. 127) states the legal rule thus: “Express testimony cannot be rejected on the sole ground of its improbability.” This ease was affirmed by this court in 17 N. J. Eq. 453.
We said, in Baldauf v. Russell, 88 N. J. Law 303 (at p. 306), the following: “It is true that the trial judge certifies that, after the cross-examination of the witness, he concluded that his testimony was unworthy of belief. But the testimony of a competent witness cannot be capriciously rejected. There must appear some good reason for such action, as, for example, that his story was inherently improbable, or that it was contradicted by some other testimony or ■ by some ’ proven fact or circumstances, or by testimony impeaching his truth and veracity.”
We are unable to detect anything inherently improbable in the testimony given by the respondents, and therefore conclude that the learned vice-chancellor did not err in refusing to reject their statements in his consideration of the cause before him.
The decree is affirmed, with costs.