17 Abb. N. Cas. 210 | N.Y. Sup. Ct. | 1885
—The action was brought by the plaintiff as a judgment creditor of the defendant, Mary Ann Trimble, to set aside as fraudulent the conveyance of certain real estate made by her to the other defendants in the action to be paid for by her future support and maintenance.
To resist the action, on their part, it was alleged that the judgments were fraudulently recovered, and they were so found to be by the learned judge presiding at the special term, and judgment was accordingly directed for the defendants, denying the relief and vacating such judgments. At the commencement of the trial, objection was taken to the admissibility of any evidence tending to establish the truth of the allegations contained in the parts of the answer in which these judgments were in this manner assailed. But it has become an established rule, settled in the administration of justice, that, where a judgment has been fraudulently obtained, it may either be set aside by an action brought for that object, or the judgment itself may be defeated by a defense to any legal proceeding taken upon its authority. If any doubt could have formerly existed upon that subject, it has been removed by the provisions of the present, as well as of the preceding Code (Mandeville v. Reynolds, 68 N. Y. 528, 542).
The two judgments were recovered by the plaintiff, upon coupons attached to instruments in the form of bonds, issued by the defendant Mary Ann Trimble, in the fall of 1869. There were two hundred and forty of these instruments, in part for the sum of $100 each, and in part for the sum of $500 each, with yearly warrants or coupons, including interest, attached to
Early in November, 1869, the defendant Trimble rented the Opera House to Lucien Barnes, for the term of eleven years, and also agreed in writing to sell and convey the property to him. As a part of the consideration for the agreement, he covenanted with her to pay all of these obligations with the accompanying coupons. In May, 1872, Aaron Richardson, the husband of the plaintiff, acquired this lease and contract of sale, and in like manner agreed to pay the same indebtedness, and in December, 1872, the defendant, Trimble, conveyed the Opera House to Warren F. Leland. By her answer it was alleged that the coupons upon which judgments had been recovered, together with the other obligations entered into by her, and secured in this manner, had been fully paid. And the evidence which was given upon the trial so conclusively established'the fact of their payment, that after it was concluded, it was conceded by the plaintiff, “ that the
But her allegations are, in the third and fourth subdivisions of her answer, that she was induced by the persuasion and fraud of Richardson, the plaintiff’s husband, to permit these and other similar judgments to be recovered against. her, to enable the plaintiff to proceed against the Opera House property, which had then passed into the hands of Charles E. Leland, and appropriate it to the payment of these alleged debts. The object seems to have been to recover judgments
In this unlawful enterprise, the evidence showed that Richardson acted on behalf, and under the authority, of the plaintiff in this action.
The defendant then was, as the fact has been alleged in the third subdivision of her answer, and admitted by the concession made at the close of the trial, “in feeble health, and of advanced age, and because of her age and infirmities, and that she had transacted nearly all the matter relating to said securities by attorneys, instead of personally, she had wholly forgotten that said Richardson had released and discharged her from all claims and demands against her as hereinbefore alleged ; that years before she had parted with all her title to said property, and the only concern she had therewith, was a desire that the said obligations incurred by her upon the credit thereof, should be paid thereout, if any of such obligations were still unpaid.” It was also alleged in the third and fourth subdivisions of the answer, that Richardson, who was the real plaintiff in, and directed and controlled, all the actions in which the judgments were recovered, fraudulently represented to the defendant Trimble, and to her agent and attorney for her, that he was the owner of a large number of the obligations with their coupons, secured by the mortgage; that they never had been paid either by Barnes or Warren F. Leland, to whom the property had been conveyed, or any other person, who had become bound to. pay them; “and that said persons designed and intended to defraud Mm, the said Richardson, of the amount of said obligations held by him, and to procure to be made, and to make, a satisfaction and discharge oí the said mortgage given by this defendant to said
After these representations had been made, and the defendant Trimble had been induced to rely upon them, and some of the judgments had been recovered, an action was brought in the name of Paul Cushman, one of the trustees, to foreclose the mortgage upon the Opera House, in which it was alleged that a portion at least of the instruments and coupons made by the defendant Trimble remained unpaid, and demanding judgment that the “ premises, or so much thereof as may be sufficient to raise the amount due upon the obligations and coupons secured by said mortgage for principal and interest, and the costs of this suit, and which may be sold separately without material injury to the parties interested, may be decreed to be sold according to law.”
To this action the present plaintiff, her husband, the defendant Trimble, and others, were made defendants, and in it the proof appears to have shown that this defendant, a-t the instance of Richardson, served an answer alleging, after making a statement of eight-different judgments recovered against her, and probably including the two upon which this action has been brought, “that all said judgments are due and unpaid, and this defendant claims that the amount thereof should be paid from the proceeds of the sale of the premises in said complaint described.” And in
This judgment was objected to as evidence upon the trial of this action, and an exception was taken to the ruling of the court allowing it to be used as such. But this exception has no legal foundation to stand upon, for the judgment was admissible certainly to prove the fact that Richardson had been defeated in the object which he represented to the defendant Trimble, it was his sole purpose to secure. And, in that manner, a motive had been supplied for diverting these judgments from the object which he represented it was his sole purpose to accomplish by means of them, to their enforcement as legal obligations against the defendant Trimble, and her property. It was also admissible, as these persons were all parties to that action, to show the ground upon which it had failed, and that this ground was the payment and satisfaction of the demands alleged to still existas its foundation. But even if it should nor. have been admitted, as the final concession made included this fact of payment, and established it beyond controversy, the roll itself was entirely harmless, and added nothing to the force of the case made in behalf of the defendants.
The agreement under which the judgments were recovered by the plaintiff against the defendant
And that this use of the judgments to be recovered, was intended to be restrained and prevented,"not only appears by the proof and the concessions of the plaint-' iff which have already been mentioned, but further and beyond that, by a letter proved to have been in the handwriting of Richardson, although not signed by his name, written to her daughter, Mrs. Cole, who is one of the defendants, and in which he said : “ Dear Madame: I write this to inform you that your mother need not feel uneasy about the suits that have been commenced against her, as the parties have no wish to injure her or you either, but will do anything to satisfy you or her of their good intentions. You or her, with any true friend, can call on Messrs. Lindleys, or Mr. F. L. Hall, and you can get undoubted guarantees that they will not harm her, but will try to help her get what belongs to her. You Tcnow well that your mother was cheated out of the Trimble Opera House by the Lelands, and there is nothing to be gained by acting with them against her own interest. You can rest assured that the parties do not intend any harm to your mother. From a Friend.”
After placing the deferid ant Trimble, as well as the other defendants, in this position, by the representations and agreement which were made, and under which the judgments were permitted to be recovered, the law will not allow the plaintiff to enforce them against the defendants in violation of such representations and agreement. .
And this rule was expressly sanctioned in Dobson v. Pearce, 12 N. Y. 156, 165; and to the same effect is Reigal v. Wood, 1 Johns. Ch. 402; Warner v. Blakeman, 4 Keyes, 487; Mather v. Parsons, 32 Hun, 338; Shedden v. Patrick, 28 Eng. Law & Eq. 56; U. S. v. Throckmorton, 98 U. S. 61. In Huggins v. King, 3 Barb. 616, the plaintiff in an action, for a good consideration, agreed to discontinue if, but in violation of Ms agreement, took judgment against the defendant, and that was held under the circumstances sufficient to justify the conclusion that the judgment was fraudulent in its character.
The case of Engel v. Sheuerman, 40 Ga. 206, is also a decisive authority in favor of the defense made to this action. There a judgment had been recovered in the State of Georgia for $5,000, which had been paid. While that action was pending, a' suit in this State was brought for the same demand. The plaintiff in both actions led the defendant to believe that the suit
As the facts have been proved and established in this case, it was one which not only justified but preeminently required the application of this equitable principle. The defendant Trimble had been imposed upon by the plaintiff’s husband, acting in her behalf, and under her authority, in the recovery of these judgments against her. And no case of greater injustice could well be imagined than would exist if this court should now permit these judgments to be used in the manner in which the plaintiff has endeavored to use them against the defendant Trimble, and her grantees. It would be harsh, unjust, and oppressive, to allow the plaintiff, in violation of the agreement made and of the representations acted upon, to maintain her action for the collection of these judgments out of the property of the defendant against whom they were recovered. The authorities to which reference has been made will not permit that to be done, even if the court without them could so far forget its own sense of justice and right as to allow that result to be accomplished. No otlier objection taken to this judgment deserves consideration. It was entirely correct, and it should be affirmed, with costs.
Davis, Ch. J., and Brady, J„, concurred.