2 Rob. 484 | The Superior Court of New York City | 1864
By the Court,
The evidence in this case presented two questions of fact for the jury: 1. Whether the sale of the judgment debtor to the plaintiff was made by him with the intent to hinder, delay or defraud his creditors. 2; Whether there was an actual and continued change of possession of the things sold-by Prentice to the plaintiff in this action. It is contended by the defendant that neither of these questions was presented to the jury, but that the court took them from their consideration. The defendant requested the court to charge, “if the jury find that the sale and transfer made by the vendor, to the plaintiff, was made with the intent to hinder, delay or defraud the creditors of the vendor, the same is fraudulent afid void, and the defendant is entitled to a verdict.” The court charged, “ This is true, with this modifications . if -the transaction between the parties was designed to be a sale by one and a purchase by the other in payment of a debt to the plaintiff, in part or in whole, in good faith, which Prentice, the vendor, owed to the plaintiff,- then there is no fraud in the case; no intention on the part of the vendor to defraud, hinder, or delay his creditors.” To this the defendant excepted. Whether this sale was made with a fraudulent intent was for the jury to find solely upon all the facts disclosed by the evidence. It may be said that the use of the words “ good faith ” make it in substance the same as the request. This part of the charge is of such a character as to hardly submit the question of fraudulent intent to the jury. The rule is unqualified that the question of fraudulent intent shall be deemed a question of fact for the jury, and not of law. We think the learned judge erred in qualifying the rule—which has for wise purposes been incorporated into the statutes. There are no adjudications which authorize the qualification suggested in a transaction so open to criticism as the conceded facts in this case disclose. It was proved upon the trial that
Nothing can be clearer than that it was error to charge that the payment of $150 on account of the proceeds of the sales is sufficient evidence that the property was in the possession of the plaintiff and remained in her possession. The court did not say it tends to prove the change of possession and its continuance, but that it is sufficient evidence thereof. It may have been true as a matter of fact, that the money was paid out of the proceeds of sales ; and yet, to say the most, it was only evidence for the jury to consider in passing upon the question of an actual and continued change of possession. It may have been true that the plaintiff declared herself in possession. .She might have received the $150; also taken the bill of sale; and yet all have been an arrangement to prevent the sheriff from seizing the property, such as the judgment debtor had told the
The j udgment should be reversed, and a new. trial ordered, with costs to abide the event.