Wood v. Hunt

38 Barb. 302 | N.Y. Sup. Ct. | 1862

By the Court, Leonard, J.

The fraudulent character of the conveyance from Hunt, sen., to Hunt, jun., one of the defendants, is fully developed in the evidence and the facts found by the learned justice before whom this action was tried.

Where a party receives a conveyance of land or other property from an insolvent, without actually paying, securing or becoming bound to pay any consideration therefor, no further proof of knowledge or notice of the fraudulent intent of the grantor against his creditors, is necessary in order to charge the grantee with complicity in the fraud. The subsequent voluntary payment by the grantee of valid debts existing against the grantor, or the purchase of obligations against him, or even the payment of some money, subsequently, to the grantor, will not create a presumption in favor of the good faith of the grantee, or sustain the validity of the conveyance. Nor does the grantee, by such evidence alone, present a case which entitles him to demand, as a condition to the granting of relief to the creditors of such a grantor, by adjudging it void and directing a sale of the premises, and the satisfaction of a judgment creditor from the proceeds of the sale, that any provision should be made for the indemnity of the grantee for sums which he has voluntarily paid to parties having demands against the grantor. The complicity of the grantee in the fraud of the grantor deprives him of any right to relief in respect to such payments, from a court of equity. A grantee of a well known insolvent, who cannot show that he paid some present consideration at the time of the conveyance, or then secured or undertook by some promise to pay in future, cannot claim to be ignorant of the fraudulent intent of the grantor against his creditors. His innocence in such a case is against the well known presumptions as to human action. The point based upon the supposed want of knowledge of the fraud of the grantor in making the conveyance is not well taken.

An exception was taken at the trial, on the part of the defendant Hunt, on account of the refusal of the court to allow the said defendant to be sworn and examined as a witness in his own behalf. The defendant Moultrie, the husband of one of the children and heirs at law of Hunt, sen.,' who was also a party defendant, had been examined as a witness for the plaintiffs. The case made by the complaint shows that all the heirs at law of Hunt, sen., are united in interest. It is true, the defendant Hunt, jun., denies the allegations whioh prove the unity of the interest of the heirs, and claims to own the premises in question in his own right, by the coüveyance from Hunt, sen. The plaintiffs cannot be permitted to depart from the case made by their own complaint, and adopt, for the purpose of their objection, the case made by the answer of Hunt, jun.

According to the provisions of section 397 of the code, the defendant Hunt was authorized to give evidence as a witness in his own behalf, because Moultrie, who had been examined as a witness for the plaintiffs, and the defendant Hunt, were co-defendants in the action and united in interest. (Buchanan v. Morrell, 1 Bosw. 602.)

The plaintiffs however bring this action as the executors of a deceased person, and section 399 contained a provision, when this action was tried, enacted in 1857, which declared that a party to an action should not be examined as a witness in his own behalf where the opposite party was an executor of a deceased person. (See Sess. Laws, 1857, vol. 1, p. 744.) This provision has since been somewhat modified, in 1860, shortly after the trial herein, and again in 1862.. Certain alterations _ and additions were made to the section in 1858 and in 1859, but the particular provision referred to continued in full force frorp. 1857 until after the trial of this action, which occurred in January, 1860. The operation of these two sections of the code is in direct conflict in this particular case. -The provision last enacted must prevail-, as the last expression of the legislative will.

The latter clause of section 397, under" which the defendant Hunt claims the right of giving evidence in his own behalf, was enacted in 1852. (See Sess. Laws, p. 662.) Under this rule the claim of the defendant Hunt to give evidence in his own behalf was not sound, and the "exception taken in that respect will not avail him.

Another objection is urged arising from the form and directions of the judgment. A sale of the real estate described in the conveyance before referred to is directed by the judgment herein, and that from the proceeds the judgments recovered by the plaintiffs’ testator against Hunt, sen., together with the costs of the action, be satisfied, and that the surplus, if any, be deposited • in the trust company; and in case the proceeds of the sale shall prove insufficient for the payment of the plaintiffs’ said demands and costs, the judgment further directs an accounting by the defendant Hunt of the rents and profits of the premises since they were conveyed to him. Those provisions are irregular.

1st. The provision for an accounting prevents a final judgment from which an appeal can be taken, and a stay of proceedings had until after the accounting. Something remains •to be done before judgment, viz. the taking of an account. The judgment is therefore interlocutory. The sale of the premises, according to the judgment, must take place before the accounting. The defendant will be deprived of the right of appeal- until after the premises, which he claims the right to hold as his own, have been sold and taken from his possession.

2d. The proceeds of the sale of the premises, after satisfying the judgments of the plaintiffs’ testator and the costs of this action, belong to the defendant Hunt, and the judgment should direct the payment of the surplus to him. The conveyance adjudged to be void as against the plaintiffs, is valid as between the parties thereto.

The defendants’ counsel insist that these errors and informalities of the judgment amount to a mistrial. The facts and conclusions of law found by the judge át the trial do not afford the authority for inserting the provisions referred to, in the judgment which has been entered. The learned justice who tried the cause would no doubt have corrected the'se informalities had his attention been called to them.

[New York General Term, September 15, 1862.

There is nothing before the court showing that any objection was made to the form of the judgment when it was settled) or at ány time before it was entered. The judgment might have been brought before the court for correction in this respect, by appeal, under subdivisions 3 and 4 of section 349 of the code, as from an order. The appeal herein ought indeed to be treated only as an appeal under the section of the code just mentioned.

If the judgment were to stand as regular, it is not appeal-able on the merits, because of its interlocutory character above referred to.

The merits of the exceptions taken have been considered, because it was heard as an enumerated motion without objection. The errors in the judgment are those of form only, and should be corrected, but a mistrial is not thereby involved. The judgment must be modified in the manner indicated, as to its form, and the judgment so modified should be affirmed without costs.

The order of March 16, 1861, is not appealable. The application was for favor, which was denied.

The appeal from this order is dismissed, with $10 costs.

Ingraham, Leonard and Barnard, Justices.]