46 N.Y.S. 1040 | N.Y. App. Div. | 1897
An examination of the evidence in. this case clearly shows that the conveyance from the defendant Lucy M. Worden to her husband, George P. Worden, of the premises described in the complaint was executed with the intent of the parties to the instrument to prevent the collection of the plaintiff’s debt, and the finding of the referee upon that subject seems fully sustained. The learned counsel for the appellants seems to regard the house and lot that was purchased with the pension money as still exempt from execution as the property of George P. Worden, by virtue of the oral agreement to reconvey, and that he stands precisely in the same condition, having had the' property reconveyed to him by reason of the oral .arrangement, as though he had never parted with the title. The oral arrangement was void and could not be enforced. There was no fraud or mistake alleged. The conveyance was absolute from Worden to his wife, and the parol arrangement comes within the condemnation of Sturtevant v. Sturtevant (20. N. Y. 39); and Wheeler v. Reynolds (66 id. 227), and of the Statute of Frauds.
Any equities that may exist between Worden and his wife as to this transaction will not prevail against the plaintiff’s equity as a creditor of the Wordens, having trusted them upon the strength of the wife’s title to the premises, and without knowledge of the secret •oral agreement.
The property was exempt in the hands of George P. Worden, as it was purchased with his pension money, and his creditors had no ■claim upon or interest in it, and he had the right to give it to his wife or any other party, and his grantee would not be liable to account for this property to his creditors, but when George P. Worden, for whatever reason, voluntarily disposes by an absolute conveyance, duly recorded, of his title to the property, and by his act . thereby holding out to the world the title of that property in another, and permitting that other to obtain credit thereby, and his grantee having been trusted upon the faith of such title, equity will not permit him now to claim the property as exempt against such a creditor.
The pension money is used as a shield to protect the soldier from
It is the settled law of this State that, undér the provisions of the Code of Civil Procedure (§ 1393) exempting pensions granted by the United States, or a State, for military or naval services, from levy and sale on execution, where the receipts from a pension can be directly traced to the purchase of property necessary or convenient for the support and mainténance of the pensioner and his-family, such property is exempt. This is a wise and just provision in favor of soldiers of the republic, and these provisions will be enforced by the courts in all proper cases. (Yates Co. National Bank v. Carpenter, 119 N. Y. 550, and cases there cited.) But when the pensioner parts with the title to the property in which his-’ pension money is invested, or parts with the. proceeds of his pension in any other form so that the rights of third persons as to that property intervene, the right to the exemption ceases, as, like all other exemptions, it is a personal privilege.
Judge Barker says, in speaking for the General Term of the old' fifth department, in Burgett v. Fancher (35 Hun, 650): “ The favor of the statute. is personal to the pensioner, and if he once relinquishes his privileges then, of course, it cannot be restored by any effort on his part.”
It is, however, not necessary in this case to decide whether, by the conveyance from Worden to his wife, he lost his right of exemption in the property conveyed as against future creditors. We only hold that, as against the plaintiff, under the. circumstances of this case, he cannot maintain the exemption he claims in the property.
. The judgment appealed from should be affirmed, with costs.
All concurred, except Follett, J., not sitting.
Judgment affirmed, with costs.
