201 A.D. 614 | N.Y. App. Div. | 1922
The learned trial justice decided in favor of plaintiff. (115 Misc. Rep. 462.) He found the agreement by the wife to reconvey, continued expenditure by plaintiff for taxes and repairs, insurance, etc., that the value of the property was $4,000. He found that when Fisher bought the property in December, 1920, he knew that plaintiff was separated from his wife and that he was in possession of the premises. He found that Fisher and his wife were not innocent purchasers and that they were chargeable with notice of the trust agreement. He decreed that plaintiff was the owner of the property, that the deed from the wife to the Fishers should be canceled and that Mrs. Tiedemann should reconvey the property to the plaintiff. And the judgment so provided. Nothing is said in the findings or judgment about Mrs. Tiedemann returning the $1,000 to the Fishers, but the Fishers made no request for such judgment and made no point about it. The case contains no exceptions to the findings made by the learned justice. The defendant Mrs. Tiedemann does not appeal from the judgment.
I think the judgment was right. The sufficiency of the oral agreement to reconvey is not attacked by the defendant on the record. Appellants’ argument is that no fraud was shown on the part of Fisher, that there was no proof of inadequacy of consideration and that the decision is against the evidence.
The plaintiff’s possession of the property was notice of his claim of title to Mr. Fisher (Phelan v. Brady, 119 N. Y. 587), and there is abundant evidence to sustain the finding of the learned trial justice that in this rural community in Queens, the conditions existing between the plaintiff and his wife were known to his near neighbor of fifteen years’ standing. The insufficiency of the consideration paid, the haste with which the transaction was closed and the absence of explanation by Mr. Fisher, who was present at the trial, justified the finding of the learned justice that Mr Fisher was endeavoring to take advantage of the dispute between husband and wife to get the family home at much less than it was worth without consulting the husband.
But my brethren who dissent think that the plaintiff cannot have relief in equity because he made the deed to his wife for the purpose of hindering, delaying and defrauding his creditors. (See Simis v. Simis, 146 App. Div. 655; Lynch v. Jones, 179 id. 613.) It seems to me the answer to this is that there is no evidence that the plaintiff had any creditors at the time he made the deed to his wife, or at any time, nor is there evidence that by making the deed in question he divested himself of all his property. On the evidence in the case he was still entirely solvent. He had his
Rich and Young, JJ., concur; Blackmar, P. J., and Jay cox, J., dissent on the ground that a court of equity will not relieve the plaintiff from a conveyance made with intent to hinder and delay creditors.
Judgment affirmed, with costs.