220 A.D. 258 | N.Y. App. Div. | 1927
The plaintiff is a judgment creditor of the defendant Levi A. Fessenden and brought this action to set aside the said conveyance by the said defendant Fessenden to his said wife, the defendant Josephine R. Fessenden, of his thirteen and one-third per cent interest in said parcels of real property upon the ground that such conveyance of said undivided interest was made for the purpose of defrauding the plaintiff and hindering and delaying the plaintiff’s collection of his said judgment. The real property in question was originally owned by the grandfather of the defendant Levi A. Fessenden. By the will of the grandfather the said parcels of real property, among others, were devised, subject to the life estate therein of the mother of the defendant Levi A. Fessenden, to the said defendant Levi A. Fessenden and two brothers and two sisters of said defendant, each to receive an undivided one-fifth share and interest in said parcels of real property. The evidence shows that following the death of the grandparent and until the present time the properties in question have been managed by the defendant Levi A. Fessenden, as agent for the various owners thereof, the said defendant renting the same and collecting the rents and income therefrom and, after paying the current running expenses of the properties, dividing the residue among those entitled thereto. In the year 1903 the defendant Levi A. Fessenden conveyed his one-fifth interest to his wife, the defendant Josephine R. Fessenden. The evidence shows that such conveyance was by way of gift and without other consideration than natural love and affection. Such conveyance, however, is not attacked in this action, and following such conveyance in 1903 the defendant Josephine R. Fessenden became the lawful owner of said one-fifth interest. In 1911 one of the owners in common of said real property, Emma A. Klssam, a sister of the defendant Levi A. Fessenden, died intestate and as a result thereof the defendant Levi A. Fessenden inherited a one-fourth share of a one-fifth interest of the said deceased sister in said real property, amounting to a one-twentieth interest therein. In 1913 Henry P.
The evidence further shows that in 1900 or 1902 a mortgage for $17,000 was placed upon one of the parcels of real property for the benefit of the defendant Levi A. Fessenden, all of the owners of said real property joining in said mortgage, the avails of which were received by the defendant Levi A. Fessenden and none of which was received by the other owners of the property. The evidence also shows that in December, 1904, the said defendant Levi A. Fessenden applied to his said brother and sister and his said wife for assistance and a mortgage was executed by them for the sum of $16,000 upon another parcel of real property. The avails of this mortgage also went to the defendant Levi A. Fessenden. In 1909 the brothers and sisters of the defendant Levi A. Fessenden secured from the defendants herein an agreement on the part of the defendant Josephine R. Fessenden that, to the extent of four-fifths of the $16,000 mortgage and of the $17,000 mortgage above referred to, the same were declared liens upon the said real properties prior and superior to any claim or interest which the defendant Josephine R. Fessenden had or might thereafter acquire in any or all of said properties, and that on the sale of said properties or any of them four-fifths of said sums of $16,000 and $17,000 and interest thereon from the date of the execution of said agreement, unless previously paid by the said Levi A. Fessenden, should be first deducted and paid over to the said two brothers and two sisters of the defendant Levi A. Fessenden before any part of said proceeds should be assigned and paid over to the defendant Josephine
The fact that the conveyance sought to be set aside herein was made at a time when a judgment in plaintiff’s favor for a substantial amount was imminent was sufficient to arouse suspicion of the good faith and honesty of the conveyance by the defendant Levi A. Fessenden to his wife, and naturally prompted the plaintiff to bring action to set aside such conveyance as in fraud of his rights. The learned justice presiding at Special Term, in rendering his decision setting aside such conveyance, expressed himself as of the opinion that the conveyance by the defendant Levi A. Fessenden to his said wife was without consideration and was made for the purpose of hindering and delaying the plaintiff in the collection of his said judgment, and the justice below held that it was the clear intention of the husband to put his property out of the plaintiff’s reach, and that the wife was fully aware of that intention.
While there is much to arouse suspicion as to the honesty of the transaction, yet we are of the opinion that the court below was unjustified, merely upon suspicion, in setting aside said conveyance. The evidence before the court falls far short of justifying the court’s suspicion that the conveyance from Fessenden to his wife was without consideration and was made for the purpose of hindering and delaying the plaintiff in the collection of his judgment. Indeed, the undisputed evidence shows that the conveyance was upon full consideration and was made at the instance of the grantee to reimburse her for the husband’s obligations which she assumed. While the original conveyance by the - defendant to his wife of an undivided one-fifth interest in the real estate in question was without money consideration, nevertheless, the defendant Fessenden had a legal right to make a gift of said interest to his wife. The conveyance thereof is not here attacked. Thereupon she became the owner of a one-fifth interest in said property. For the benefit of her husband she thereafter incumbered her said interest, and the conveyance of the interest attacked in this action was, under the evidence, made for the purpose of reimbursing her for her moneys which she had paid out for her said husband. The fact that the conveyance here attacked was made while a judgment against the defendant grantor in a substantial amount was impending, we do not deem sufficient to justify the setting aside of such conveyance, in view of the undisputed testimony in the case.
We are, therefore, of the opinion that the conclusion reached by the trial court, that such conveyance was made for the purpose of
Dowling, P. J., Martin, O’Malley and Proskauer, JJ., concur.
Judgment reversed and complaint dismissed, without costs to either party as against the other. Settle order on notice.