142 N.Y. 534 | NY | 1894
This is a judgment creditor's action, and the only defense relied upon at the trial was the Statute of Limitations. The action was commenced Feby. 13th, 1892. It appears from the pleadings that Phebe Haviland, mother of the defendant, took under the will of her husband, who died Sept. 17th, 1878, the use of his real estate and the income of his personal property for life. His real estate consisted of a house and lot in Geneva, in this state, and he held a mortgage on lands in Michigan, executed by Henry S. Weaver and wife. On the 13th day of April, 1880, Phebe Haviland, as executor of her husband's will, she then being in the state of Michigan, sold and assigned the mortgage to one Fish for the sum of $2,600, falsely representing to Fish that that sum was due and unpaid thereon, whereas in fact there was due and unpaid only the sum of $2,100. Fish, upon ascertaining the fact, commenced an action in the courts of Michigan against Phebe Haviland to recover back the sum paid in excess of the amount due on the mortgage, and on June 9th, 1881, recovered a judgment against her in the action. An action on this judgment was subsequently brought in the Supreme Court of this state January 28th, 1886, and judgment was recovered thereon against Phebe Haviland March 9th, 1886, for $667.47, and execution thereon was issued and returned unsatisfied. Phebe Haviland, at the time of the death of her husband and ever thereafter, was a resident of the state of New York. It is found that shortly before the recovery of the Michigan judgment, and on or about June 2d 1881, Phebe Haviland conveyed to the defendant William W. Haviland her life estate in the house and lot, and gave to him the moneys received by her from Fish on the transfer of the mortgage, without consideration, and for the purpose of placing her property out of her hands, so that the same could not be reached upon a judgment in the action. Phebe Haviland died intestate Aug. 2d 1888. This action is brought to reach the interest of Phebe *537 Haviland in the property so fraudulently transferred to the defendant. There is another fact disclosed by the evidence as to which there is no finding, but which is deemed important by the counsel for the defendant, viz., that the money paid on the mortgage by Fish was at the time received by the defendant, and was retained by him as his own, with the consent of Phebe Haviland. But if this finding had been made the evidence would have justified the further finding that the defendant assumed to act in the transaction as the agent of his mother, and that Fish supposed he was so acting, and had no information, until the examination of the defendant in supplementary proceedings shortly before the bringing of this action, that the money had been retained by him.
The limitation of time for bringing actions in the nature of a creditor's bill to set aside a conveyance or transfer made by the judgment debtor in fraud of creditors is prescribed by section 382 of the Code of Civil Procedure. By the fifth subdivision of that section a creditor's action must be commenced within six years "after the cause of action has accrued." Such an action is to procure a judgment "other than for a sum of money on the ground of fraud in a case which on the 31st day of December, 1846, was cognizable by the Court of Chancery." The words "other than for a sum of money" in subdivision 5 included those cases in which equitable relief is required, although as part of the ultimate relief a money judgment is also demanded. (Carr v.Thompson,
The further claim is made that a cause of action for money had and received could have been maintained by Fish against the defendant to recover the overpayment on the mortgage, immediately after the money came to his hands, he having received and retained it without consideration, and that this cause of action was barred by the lapse of six years and before this action was brought. The defendant may be right in his *539
contention. (Roberts v. Ely,
We think the defense of the Statute of Limitations failed and the judgment should, therefore, be affirmed, with costs.
All concur.
Judgment affirmed.