7 N.Y.S. 927 | N.Y. Sup. Ct. | 1889
Lead Opinion
1. Upon the evidence before the referee the question of whether or not the conveyance in question was made with intent to hinder, delay, and defraud the creditors of William Spaulding was one of fact. Peck v. Crouse, 46 Barb. 151; 3 Rev. St. (7th Ed.) 2329. We think the evidence fully warranted the referee in finding, as a matter of fact, that the conveyance was made with the fraudulent intent on the part of the grantor, and received by the grantee with the like fraudulent intent. Starin v. Kelly, 88 N. Y. 418.
2. We are of the opinion that the admissions or declarations of William were competent evidence against him, as he was a party defendant. He remained in the possession of the property, and, although it is said that it was under alease, yet the position of the plaintiff in attacking the conveyance is that the lease is only a part of a fraudulent contrivance to keep the property beyond the reach of William’s creditors.
3. After the evidence was given tending to establish a conspiracy to defraud the creditors entered into by William and Philo, the admissions or declarations of William were competent evidence as against him. Cuyler v. McCartney, 40 N. Y. 228; Loos v. Wilkinson, 110 N. Y. 195,18 N. E. Rep. 99; Waterbury v. Sturtevant, 18 Wend. 359. When the admissions and declarations of William were offered, they were competent evidence against him, and therefore the court could not have excluded them. Wright v. Nostrand, 94 N. Y. 31. Before the evidence closed there was abundant testimony for the referee to find that there was a combination and conspiracy between the .grantor and grantee to hinder, delay, and defraud the creditors of the grantor. The conversation held in the presence of Philo in the Windsor Hotel, detailed by the several witnesses, was sufficient to indicate the fraudulent purposes of the grantor and grantee, and to establish a scheme to hinder, delay, and defraud the creditors of the grantor. Philo was present at the conversation, according to the testimony of the witnesses, and made no statement nr declaration contrary to the avowed purpose of William in making the “deal” with Philo by transferring his real estate in exchange for patent-right. He is therefore presumed to have accquiesced in the statements. 1 Cow. & H. (n) 191, 192. However, as the referee received in evidence declarations of William made after the deed, as well as testimony taken in proceedings supplementary to execution, against the objection of Philo, thus in effect holding they were competent evidence against Philo, we think an error was committed. The opinion of Martin, J., considers this question in extenso, and the views expressed in his opinion must prevail. Therefore we must reverse, and order another trial. Judgment reversed on the exceptions, and a new trial ordered before another referee, with costs to abide the event.
Concurrence Opinion
I fully concur in the opinion of Mr. J ustice Hardin that the evidence justified the referee in finding that the transfer in question was made with an intent on the part of the grantor to hinder, delay, and defraud his creditors, and that the grantee was a participant in such fraudulent intent.
The more difficult questions to be solved in this case arise from the admission of certain evidence which was objected to, and admitted under the appellants’ exception. On the trial the respondent was permitted to prove'the declarations of the grantor, made after the transfer in question was perfected and recorded, to the effect that the purpose of such transfer was to defraud the judgment creditor represented by the plaintiff, and to prevent the collection of its debt. The referee also permitted the testimony given by the grantor in proceedings supplementary to execution to be read in evidence against the grantee. All this evidence was received under the objection of the grantee that it was incompetent as against him. It must be admitted that, as a general rule, the declarations of a grantor which form no part of the res gestee are not competent to prejudice the title of his grantee, especially when made after the transfer. Cuyler v. McCartney, 40 N. Y, 221; Bullis v. Montgomery, 50 N. Y. 352; Tilson v. Terwilliger, 56 N. Y. 273; Burnham, v. Brennan, 74 N Y. 597; Tabor v. Van Tassell, 86 N. Y. 642; Truax v. Slater, Id. 630; Coyne v. Weaver, 84 N. Y. 386; Vidvard v. Powers, 34 Hun, 221; Burhans v. Kelly, 2 N. Y. Supp. 175.
It is, however, contended that an exception to this rule exists where the grantor remains in possession. The claim here is that although the grantor had given a deed of the premises, which had been recorded, and taken a lease from his grantee, under which he claimed to hold possession, still, as the grantor was in possession, the case falls within the exception, and the evidence of the declarations of the grantor were admissible against his grantee. In Gibney v. Marchay, 34 N. Y. 301, it was held that the declarations of a party in possession of real property are admissible against the party making them, or his privies in blood and estate, but are not competent to attack or destroy a title which is of record. In Vrooman v. King, 36 N. Y. 477, it was also held that declarations made by a grantor of premises after he had sold them, though he continue in the occupation up to the time of making such declarations, were not competent evidence, as affecting the rights of his grantee. In Hutchins v. Hutchins, 98 N. Y. 64, it was said: “It is only where the party making the declarations has, at the time of making them, the title to the property, that such declarations bind his successor. ” In McDuffie v. Clark, 39 Hun, 170, it is said: “The declarations of a party in possession are admissible in evidence against the party making them, or his privies in blood or estate, not to attack or destroy the title, for that is of record, and of a higher and stronger nature, and cannot be attacked by paroi evidence. Such admissions are received in evidence simply to explain the character of the possession in a given case. ” The doctrine of these cases seems adverse to the respondent’s claim; nor do I find anything which upholds it in the cases of Adams v. Davidson, 10 N. Y. 309, or Loos v. Wilkinson, 110 N. Y 195, 18 N. E. Rep. 99. In the Adams Case, the validity of a general assignment for the benefit of creditors was involved. The declarations of the assignor before delivery of the property assigned, as to the purpose of the assignment, were admitted in evidence, and their admission was sustained. Although this ease, if not overruled, has been quite pointedly criticised in subsequent cases in the same court, still, if regarded as authority, it does not justify the rulings complained of in the case at bar. In the Adams Case the transaction was incomplete when the declarations were made, as no delivery of the property assigned had taken place. In the ease at bar the transaction was at an end. The deed had been given and recorded, and a lease of the premises taken by
It is said, however, that the lease was a part of the fraudulent scheme, and hence the grantor’s possession was not under the lease, but under his original title. The question of the validity of such lease was one of the questions being tried, and until determined, and the deed and lease were set aside, I am unable to see how the court could hold that the grantor was in possession under his original title. The question was as to the admissibility of evidence, and not as to the rights of the parties as they should finally be determined. The scheme, if fraudulent, was an executed one, and, as between the parties, their contracts were binding, and their claimed rights were their real rights. I cannot think that these declarations were any part of the res gestos, nor that the possession of the grantor at that time, under the circumstances disclosed by the evidence, rendered the declarations of the grantor competent evidence against his grantee.
It is also said that the evidence was sufficient to justify the referee in finding that there was a conspiracy between the grantor and grantee to defraud the creditors of the former, and therefore Ms declarations were admissible against the grantee. If it were conceded that such conspiracy existed, it would be difficult to perceive how it rendered the evidence of such declarations competent against the grantee. Although, when the connection of individuals in an unlawful enterprise is shown, every act and declaration of •each member of the confederacy, in pursuance of the original plan, and with reference to the common purpose, is, in contemplation of law, the act and declaration of all, and is therefore evidence against each, still an act cannot be varied, qualified, or explained by a declaration which amounts to no more than a mere narrative of a past transaction. Acts and declarations of conspirators are thus admissible only when made and done during the pendency •of the unlawful enterprise, and in furtherance of its objects. If made or performed at a subsequent period, they are merely narrative, and not admissible. 1 Greenl. Ev. § 111; l Tayl. Ev. (Text-Book Series,) §§ 589,590, 593; Indemnity Co. v. Gleason, 78 N. Y. 504, 515; People v. Gorham, 16 Hun, 93.
As the evidence under consideration consisted of mere declarations in regard to a past transaction, and were not made in furtherance of any unlawful purpose, it was not, we think, rendered competent by the previous existence of such purpose, nor by any conspiracy that may have existed to accomplish that purpose. I find nothing in the case of Wright v. Nostrand, 94 N. Y. 31, to sustain these rulings. It was there held that where a judgment debtor was called as a witness for the defendant, to give material evidence, his testimony in supplementary proceedings was admissible, not only against him, but also against all the defendants, for the purpose of affecting his credibility by showing conflicting statements. In this case William Spaulding, the grantor, was not called or sworn as a witness. There was no objection to the evidence in his behalf. The objection was specific, that it was incompetent against Philo B. Spaulding, the grantee. Under such an objection, the evidence was received. The evidence of the grantor’s declarations, made