41 Barb. 417 | N.Y. Sup. Ct. | 1863
By the Court, Johnson, J.
None of the exceptions in the case are well taken, except the one to that portion of the charge on the subject of exempt propertv. On this subject the judge charged “that the evidence showed, or at least authorized the jury to find, that the property was exempt from execution when Tuttle parted with it, and if they should find that such was the case they might properly take that circumstance into account in determining the question of intent.” I have examined all the evidence in the case with care, and am wholly unable to find any which tends to establish the fact that the property in question was exempt from levy and sale by the creditors of Tuttle, the vendor, at the time of the alleged transfer to the plaintiff. It does appear how much the property transferred was worth, and of what articles it consisted, and that the seller wras a householder having a family for which he provided, but nothing more. For aught that appears he may have retained a sufficient amount after this sale to satisfy any claim he could make for exempt property. Certainly the law will not presume, in the absence of evidence, that he did not. It lies with the party alleging that property wras thus exempt, to prove the facts affirmatively, which go to establish it. (Griffin v. Sutherland, 14 Barb. 456. Carnrick v. Myers, Id. 9.) Until it is made to appear what was the quantity and value of the necessary
Welles, J. C. Smith and Johnson, Justices.]