37 F. 865 | S.D.N.Y. | 1889
The complaint was filed in August, 1880, by John H. Platt, assignee in bankruptcy of Abraham Mead, to have applied to the benefit of the estate five houses and lots on the corner of Fifty-Fifth street and Sixth avenue, the title to which had been taken in the name of Sarah J. Mead, the bankrupt’s wife, alleged to be in fraud of creditors. Upon thevdeath of Mr. Platt, Mr. Scott, the succeeding assignee, was substituted as complainant. The general facts as charged in the bill are stated in the decision on the demurrer to the amended complaint, (9 Fed. Hep.
The lots were bought by Mead in February and May, 1867, for about $31,000, of which $16,000 remained upon mortgage, and $15,000 was paid by Mead in cash, or its equivalent. The title was taken in the name of his wife, Sarah J. Mead. In 1870 and 1871 Mead built upon, the lots five houses, at a cost variously stated by Mead as from about $115,000 to $165,000, begun in the latter part of 1869, and completed in 1871. Of this sum $76,000 was obtained upon bond and mortgage upon the same premises during the progress of the work; the rest was raised by Mead in various w’ays, from the sale of other real estate standing in his own or in his wife’s name, from moneys borrowed by him, and by discounts which he obtained on accommodation notes at the Sixth National Bank.
Mead was by occupation a plumber. For some years prior to 1866 he had dealt to some extent in real estate, always taking title in his own name, excepting one house in Thirty-Sixth street", bought early in 1865, where he resided for a number of years, the title to which was taken in his wúfe’s name, and, as he testifies, was “designed to be hers from the start.” In 1866, Littlefield obtained a judgment against him by default for. $3,183.83, which was a lien on two houses and lots in Forty-Third street, then standing in' his name. He W'as afterwards allowed to come in and defend, the judgment meantime standing as security. The case was litigated' by him until 1876, when final judgment was entered for $5,118.28. During this interval from 1867 to 1873 bis speculations in real estate were gradually much enlarged. His obligations became heavy. All titles after 1866 were taken in the name of his wife or part-' ner, except as to one house in West Twelfth street, in which there was an equity of $5,000. Down to the end of 1872 the real-estate market was rising, and he realized considerable profits, which were mostly reinvested in property heavily mortgaged. He was unable to carry this propertj^ through the depression which followed the panic of 1873. Except the buildings and lots now in question, it was all disposed of by sales at a loss, by foreclosures with deficiency judgments, or by reconveyances to the grantors upon nominal consideration. At the epd of 1873 he became distressed for money, paid little or no accruing interest after 1874, was insolvent in 1875, and in 1878 was adjudicated a bankrupt. This suit was commenced within two years after the delivery of the assignment to the assignee. The statute of limitations is therefore no bar to this suit.
For the defendants it is contended that there is no proof of any fraudulent intent as respects any creditor, existing or subsequent; and that no relief can be had upon the Littlefield claim, because he voluntarily released sufficient real estate which was primarily charged with the payment of his judgment.
The Revised Statutes of this state provide that where a grant is made to one person, and the consideration therefor paid by another, no use or 'trust shall result in favor of the latter, but the title shall vest in the for
The above provisions apply to the original purchase, and to Little-field’s judgment, which was a claim then existing. Mead, as I have said, pul about $15,000 into this purchase in his wife’s name. The statutory provisions do not apply to the improvements made upon the lots from three to five years afterwards, even though the land be held to belong to Mrs. Mead as against creditors. The husband’s expenditures in building upon them valuable houses stand in no better position than a voluntary gift from husband to wife; and, as against creditors, if intended as a gift, it must stand or fall according to the rules applicable to such gifts, having reference to the debtor’s means and a reasonable provision for his family, and the rights of creditors, existing and subsequent.
As respects the Littlefield claim, it is urged that a fraudulent intent is disproved by the circumstances, because the judgment was already abundantly secured, it is said, by real estate standing in Mead’s name; because lie had other personal moans to a considerable amount; and because the inconveniences attending real-estate transactions in one’s own name while a judgment in litigation attaches a lien upon them, furnish a perfectly innocent and justifiable reason for dealing in the name of another, without any presumption of a fraudulent intent. These considerations are entitled to much weight; and they would be deemed controlling were they not overcome by other evidence and by Mead’s subsequent conduct. Resides the general evidences of his intention referred to below, the evidence demonstrates that Mead did not intend to leave any real estate standing in his name as a security for the Littlefield judgment any further than he could help; and that, long before Littlefield’s final judgment was perfected, Mead withdrew his interest completely. He himself procured the release of one house in 1867 upon a nominal consideration. He sold the other to Mrs. Travis upon full consideration, in 1872; and a third in West Twelfth street, which was taken in his own name at the same time with the sale to Mrs. Travis, (probably as a su Instituted, though inadequate, security for the judgment to satisfy Mrs. Travis,) he sold with full covenants and warranty a few months afterwards, without reference to the judgment. This last house was sold on execution on the Littlefield judgment in 1876, realizing but $1,000, and leaving' upwards of $4,000, besides 12 years’ interest, still unpaid. My conclusion is that Mead not only meant to contest the Littlefield claim, but meant never to pay it if he could help it; and that his taking the subsequent titles in his wife’s name was partly with this intent.
The two releases executed by Littlefield do not prejudice the claim under his judgment. The release of the house 103 West Forty-Third street in 1867 was evidently obtained by Mead himself, to enable him to convey that property, and thereby obtain a part of the consideration which was used to purchase the Sixth-Avenue lots in question. The re
It is contended by the respondent that this subject clause made this property the primary fund for the payment of the Littlefield judgment; and that the release of it bjr Littlefield estops-him from making any subsequent claim under the judgment against Mead or his property. There are several reasons why this view cannot be sustained: (1) Even if the effect of the whole transaction between Mead and Travis was to make the land, as between them, the primary fund for the payment of the judgment, it would not have bound Littlefield, a prior lienor, unless he had notice of facts sufficient to constitute Mead a surety merely. Ingalls v. Morgan, 10 N. Y. 178, 187; Cheesebrough v. Millard, 1 Johns. Ch. 414; Guion v. Knapp, 6 Paige, 43; Palmer v. Purdy, 83 N. Y. 147. There is no evidence that Littlefield had any such notice, actual or presumptive. The case is wholly different from that of a specific lien like a mortgage. This'-judgment was a general lien merely; and, when Littlefield was applied to for a release, the only knowledge with which he was chargeable was simply that the property was subject to the lien of his judgment, like any other real estate that had belonged to Mead, without any obligation on his part to look to that property primarily or alone. The record of the subsequent deed was not constructive notice of its terms to Littlefield. Cheesebrough v. Millard, supra. Even if Littlefield had had knowledge of all the facts that now appear, it wpuld have made no difference; for these facts do not show that the Travis property became the primary fund for the payment of Littlefield’s claim, or that Mead became in equity a surety only. For (2) the deed does not say that Mrs. Travis was to pay the judgment; while it does state that she was to pay the assessments. Had the same intent existed as to the judgment, it would have been so expressed. (3) The conveyance was only “subject to the lien” of the judgment, not to the payment of it,—a wholly different thing. Dingeldein v. Railroad Co., 37 N.Y. 575. (4) It is certain that the amount of the judgment was neither agreed to be paid by Mrs. Travis, nor deducted from the consideration money. Mead does not so testify on either point, as he would have done if either were true. The judgment then .amounted with interest to about $4,400. Mead says he considered the property conveyed worth $18,000, or $2,000 more than the price named in the deed. But ‘there is no evidence that Mrs. Travis so considered it; and, besides, she was to pay the Broadway assessments. But even this $2,000 difference is not half the judgment. Had it been understood that Mrs. Travis or her property was to pay the judgment, the whole amount of it would have been deducted from the consideration money; and Mead does not say that anything was deducted. And if the
The right of a debtor to make a particular fund the primary fund for payment of a debt is a purely equitable right. It rests either upon express contract, or upon the consideration of the transaction that raises such an equity Where the debtor’s lands, for instance, are sold on execution, subject to a prior mortgage, the purchaser is presumed to have bought only the debtor’s equity above the mortgage, and to have paid the consideration for that equity only; and the land therefore becomes thereafter the primary fund for the payment of the bond and mortgage. Tice v. Annin, 2 Johns. Ch. 128; McKinstry v Curtis, 10 Paige, 503; Vanderkemp v. Shelton, 11 Paige, 34. In this case there was neither any such agreement, nor any abatement or deduction from the consideration in Mrs. Travis’ purchase, such as to give Mead any equitable right to have her property pay the judgment. He has no such equity. Littloiield’s release of that property lor $200 was therefore immaterial. Had the release not been given, and had Mrs. Travis been compelled to pay the whole judgment, she would have had a right to an assignment of the judgment for her benefit, to have it enforced against Mead in any legal or equitable proceeding like the present. Ingalls v. Morgan, supra. Lt is not improbable that, this subject clause was inserted in the deed through the caution of Mead’s attorneys for the very purpose of giving him the unquestioned right to litigate Littlefield’s claim, and to prevent the grantee from either discharging the judgment, or claiming that the covenant against incumbrances was broken as soon as the grant was made, which otherwise fnight have been done. See Barnes v. Mott, 64 N. Y. 397, 400, 402. The defense that the Travis property became the primary fund was not pleaded; and very likely all the obtainable evidence pertinent to the question may not have been produced. It is possible that some agreement was taken by Mrs. Travis from Mead in reference to that judgment, and that the title to the house in West Twelfth street, which he had bought for $5,000 cash over the mortgage at the same time with the Travis deed, both being acknowledged on the same day, was designed to l>e a substituted security so far as to allay any apprehensions of Mrs. Travis. I do not credit Mead’s statement that he believed the Littlefield judgment was “arranged upon the Travis sale,” except in some such way as the above. He afterwards continued taking titles in his wiie’s name precisely as before, though the business was intended as his own. Upon the original purchase I must therefore hold that the Little-field judgment attaches as a statutory trust.
2. The buildings. If Mead’s improvements on the lots had been intended as a gift to his wife, its validity as against creditors would be determined in reference to the amount of his means thus diposed of, his other pimpertv at the time, his existing indebtedness, the reasonableness ni the gift as a provision for his wife, and the use afterwards made of it,
The amount invested by Mead in the houses cannot be determined within $50,000. Mead’s sworn statements at different times differ by more than that sum. His check-books, which would have furnished valuable data as to this and other matters, have been kept.concealed. He had access to them himself; but he refused to disclose where, or un
Mead states that he was worth at that time from $75,000 to $150,000, and did not owe over $10,000. On cross-examination he fails to show with any definiteness property worth over $50,000 or $60,000, all told, except such as rested on mere estimate or conjecture, including what stood in his wife’s name, aside from the house in Thirty-Sixth street. The explanation given of his failure, and the fact that upon his bankruptcy he had no assets, and owed at least $72,000 of unsecured debts, (excluding all of the alleged debt to James C. Mead of $32,000, excepting $8,000.) confirms the belief that practically all that he had above what he owed was invested in those houses. Ho states that his failure was caused by the shrinkage of real-estate values; and that, after 1873, the loss of cash invested therein was, all told, $186,535. Other parts of the evidence, however, show that his receipts from profits on wholly new transactions after the houses were all built in 1871, and from mortgages on the property in question, together with the debts unpaid and unsecured at the time-ol' liis bankruptcy, amounted to from $193,000 to $210,000, which is made up as follows: Additional sums raised on mortgage of the property in question after 1872, (amount per schedules, $155,750; per deed to J. C. Mead, $172,150,) $65,650 to $82,150; profits on lots bought from and after the summer of 1871, (McKee, Andrews, Beer, Gillies, Bums,) $55,552; debts unpaid, $72,000; making altogether from $193,000 to about $210,000; or from $7,000 to $24,000 more than all his losses, without counting the net rentals received by him from this property during many years. Assuming that all these net rentals—some $5,000 or $6,000 a year—were consumed in his expenses of living, (certainly a liberal allowance,) and that he earned nothing in his plumbing business from 1871 to 1878, it would seem, considering that his schedules show no assets, that unless some considerable assets were concealed at the time of his bankruptcy, he and his wife together, aside from the Thirty-Sixth street house, had nothing in 1870 and 1871, over his debts, except what was put into this property; and that, whatever his apparent property may have been, it was really absorbed in' paying a part, but not all, of his indebtedness at that time in its continued and substituted forms. As to the amount of his indebtedness, Mead testifies that it did not exceed $10,000 when he began building, including the Littlefield judgment and Haight’s claim, which
Mrs. Mead had no claim upon her husband for money or property brought to .him upon her marriage, or through her family. The contrary suggestions made by Mead in the earlier part of the examination were afterwards disproved. She had no estate of her owm, and received from her father only $460, which w'as but a repayment of w'hat Mead had invested in furniture. I accept Mead’s testimony that the house bought in 1865, and taken in Mrs. Mead’s name, “was intended to be hers from the start.” It was their place of residence; it was a reasonable provision for her at that time; it was not prejudicial to Mead’s existing creditors, and was not used to mislead subsequent creditors. When the buildings on the lots in question were commenced, the house in Thirty-Sixth street was worth, as Mead says, $30,000. It v'as sold in 1873 for $31,000, netting $22,500 over the mortgage. I shall sustain this provision for Mrs. Mead to the amount of $22,500, considering- that sum as practically turned into the Fifty-Fifth street property, where the family afterwards went to reside.
The subsequent use of the, property in question by Mead was such as legally subjects it to the claims, not only of his existing creditors, but of subsequent ones misled by "it. Mead alone was in apparent possession, as he undoubtedly had the sole management and control of it. He appointed agents of the property, who understood him to be owner. He usually spoke of it as his; made some long leases of it in his own name; and received and used all the rents, and contracted all debts in reference to the property. It was a valuable property. It gave him a reputation for wealth; and, in my judgment, was the backbone of his credit. The evidence shows that many of those who loaned him money did so on the faith of his supposed ownership of this property, to several of whom he
Mead’s investment of his money in building on his wife’s lots, when the intent of both was that Mead should have all the fruits of it from rentals or the proceeds of sales or mortgages, as the facts here prove that he did have to a considerable extent, in part execution of the trust, is virtually a “transfer” of Mead’s personal assets to Mrs. Mead “in trust for his use;” and as such is by the statutes of this state “void as against creditors, existing or subsequent.” 2 Rev. St. p. *135, § 1; Curtis v. Leavitt, 15 N. Y. 9, 132, 148, 149; Wilson v. Robertson, 21 N. Y. 591—594; Young v. Heermans, 66 N. Y. 381; Dewey v. Moyer, 72 N. Y. 70, 76, 103 U. S. 301. The statute applies to “all transfers, verbal or written.” This expenditure was a “verbal” transfer of his means. That it was in trust for his “use” is as clear to me as if it had been declared in writing. Though a trust in lands cannot be created by parol inter partes, this does not apply to trusts for creditors, by operation of law; nor, I think, to moneys laid out on another’s land, but for one’s own use; nor to the proceeds to he derived therefrom, when such was the common intention. Section 1, p. *135, and section 2, p. *137, N.Y Bev. St., are thus harmonized. To a considerable extent the real trust has been executed in the application of rentals and of the moneys raised on mortgage of the property to the security or payment of Mead’s debts at the close of 1873 and subsequently. In either point of view, subsequent creditors misled are entitled to relief.
When Mead’s insolvency became certain in 1875, the insecurity of this property, though standing in his wife’s name, became apparent. It was accordingly conveyed to his cousin, James C. Mead, of Sing Sing, in June, 1875, for the consideration as stated in the deed of $300,000, subject to mortgages for $172,150, and taxes of 1874. A memorandum of
Upon all the testimony, I do not find that at the time of the original purchase of the lots there was an actual and positive intent on Mead’s part to hinder, delay, or defraud any creditor except Littlefield, whom he did by this means intend to hinder and delay in the collection of his debt. But I do find that the subsequent investment by Mead in 1870 and 1871 of'a large amount of his means in the erection of houses on lots standing in his wife’s name was greatly in excess of what was legally justifiable as a provision for her, having reference to his then existing meáns, and the uncertain and speculative nature of the chief business in which he was engaged, and the large obligations he had assumed in it, and the still larger ones he soon after assumed; that'neither this investment, nor the original purchase, was intended as a gift to Mrs. Mead, but was a mere trust for his own use; that the provision previously made for Mrs. Mead, which is herein sustained to the amount of about $30,-000, was all that his circumstances warranted; and that the investment in'these houses of so large a part, if not the whole, of his means over and above his unsecured liabilities, and his subsequent possession and use and representation of the property as his own, upon the faith of which subsequent loans were made to him, were incompatible with the rights and interests of creditors misled, and wore in law fraudulent as to them; as well as void under the provisions of the Revised Statutes of this state.
The complainant is entitled to a decree declaring the original purchase of the lots subject to a trust for the payment of the amount now due and owing upon the Littlefield judgment; (2) the balance of the amount invested by Mead in the original purchase of the lots, after deducting the above, will go to Mrs. Mead, together with the sum of $22,500, the net proceeds of the Thirty-Sixth street house; (3) that there be next paid from the proceeds of the property the rest of the debts as they now stand proved against Mead in the bankruptcy proceedings pro rata; excluding, however, therefrom' the debt to Maelay for a deficiency judgment on foreclosure. The presumption from the circumstances, and the ordinary well-known course of business in this city, is that Maclay’s bond and
