47 N.Y.S. 576 | N.Y. App. Div. | 1897
This is a creditor’s action to set aside as fraudulent and void a •conveyance made on the 3d day of March, 1893, by the defendant-
It is a familar rule that, to authorize the setting aside of a conveyance on the ground of fraud upon creditors, there must have been not only the conveyance itself, but it must transfer property out of which the creditor could have realized his claim or some portion of it, and the transfer must have been made with intent to defraud. (Hoyt v. Godfrey, 88 N. Y. 669.) The conveyance in this case was without consideration, or a voluntary one. That is not enough to authorize a judgment, setting it aside. The statute is-entirely plain upon that subject. Among the general provisions of the Statute of Frauds (2 R. S. 137, § 4) it is enacted that “ the question of fraudulent intent in all cases arising under the provisions-of this chapter shall be deemed a question of fact and not of law;. nor shall any conveyance or charge be adjudged fraudulent as-against creditors or purchasers solely on the ground that it was-not founded on a valuable consideration.” This section was passed to incorporate in the statute law the rule of decision as laid down by the Court of Errors in the leading case of Seward v. Jackson (8 Cow. 406), and to carry out the views of Chancellor Jones asexpressed in his opinion in that case. (5 Edm. Statutes at Large, 397, revisers’ notes.) It was designed to settle the much-disputed point of the conclusive effect of a voluntary conveyance from a person indebted at the time the conveyance was made. But it further provides, in substance, that a presumption arising from the want of a valuable consideration shall not, standing alone, be* sufficient to authorize an adjudication that the conveyance was fraudulently made. The conveyance in the case now before us was made by a husband to his wife, and was admittedly without consideration. Such a conveyance cannot be condemned without satisfactory proof of the fraudulent intent referred to in the statute. The rule is aptly expressed in the case of Kain v. Larkin (131 N. Y. 307), as follows, viz.: “ An owner of real estate can make a voluntary settlement thereof upon his wife and children without any consideration, provided he has ample property left to satisfy all .the just claims of Ms creditors. If the gra/ntor remains solvent
The question in this case is whether the plaintiff met the requirements of the law with respect to the character and sufficiency of evidence to establish the fraudulent purpose of the grantor in making the conveyance of the. particular property referred to in the complaint in this action;. and we think he has.' -The record discloses that there was an intent on his part to place his property in -such a situation that it could not be resorted to for the collection •of the particular indebtedness represented by the plaintiff in this ■action. • Or, to state it differently, that the grantor, by the conveyance attacked herein, intended to put the property transferred by it in such a situation that, if this one particular creditor sought to -enforce his claim and recovered judgment upon it, this and other property would be beyond the reach of an execution. That presents a feature of intended fraud, and it becomes necessary to examine the testimony to ascertain if it justifies this conclusion. In making such examination, we are not confined simply to the condition of the proofs as, they. stood when the plaintiff’s case in chief was closed. We are to take the -whole evidence as it was before the court below, and from it we find that sometime preceding the 3d of March, 1893, the defendant Horáce Craighead began a series of acts with relation to his property which indicate a fixed purpose on his part - to put in his wife’s name not only the land covered by this conveyance, but other valuable property,- in view of the possible enforcement against him of the large claim represented " by the. plaintiff in this action. Enforcement of that claim was threatened- some months before the date of the
The conveyances attacked here, the defendant Horace Craighead claims he only intended as a suitable provision for his wife. His idea of such suitable provision seems to have extended to putting in her name or transferring to her all his landed property before the plaintiff could reach it upon an execution, and after he, Craig-head, had realized as much ready money as it was possible to obtain prior to the conveyance of the land being made. He did not remain solvent in the sense in which that phrase is to be understood. He was scheming to rid himself of the title to his property, and the-conveyance of the lots in question was one step in carrying out that, scheme. The proof showed the fraudulent purpose, and the judgment should have been rendered for the plaintiff.
The judgment must be reversed, with costs, and judgment directed for the plaintiff as prayed for in the complaint, with costs.
Van Brunt, P. J., Barrett, Rumsey and Williams, JJ. concurred.
Judgment reversed, with costs, and judgment directed for plaintiff1 as prayed for in the complaint, with costs.