Pearsall v. Stewart — 112 A.D. 366

Majority

p. 366

Thomas E. Pearsall and Others, Respondents, v. Thomas H. Stewart and Ella F. Stewart, Appellants.

Second Department,

April 20, 1906.

Headnote

Debtor and creditor—fraudulent conveyance — evidence insufficient to ' * . establish fraud..

Evidence that a debtor conveyed property to his wife- for a nominal considera- - tion is not sufficient to warrant a finding of fraud in the absence of evidence.! ' showing that he retained no other property with which to meet his debts or - direct evidence of fraudulent intent.

Appeal by the defendants, Thomas H. Stewart and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the; office of the clerk of the .county Of Kings on the 8th day of February, 1905, upon the decision of the court, rendered after a trial at the Kings. County Special Term, adjudging 'the con-. veyance' made by the defendant Thomas H. Stewart to the defendant Ella F. Stewart to be void' and setting aside the same.

Reno R. Billington, for the appellants.

Frederick W. Sparks, for the respondents.

The eighth finding of fact that 'the conveyance and transfer by the defendants of the'property in question was made with intent to hinder, delay and defraud the plaintiffs, is without sufficient , evidence to support it, and as such a finding is essential to the judgment in plaintiffs’ favor the latter must also fall. There is, perhaps, evidence which tends to show that the transfer by one defendant to the other, his wife, was for a nominal consideration; but there is no suggestion in the evidence that at the time of such transfer the husband was not the; owner of ample other property wit-h which to pay his debt to the plaintiffs and every other he might owe. The return unsatisfied in June, 1904, of an execution against his property does not make a satisfactory showing that he had no property in August, 1901, at the time of the transfer..

There is. no direct evidence of fraudulent intent; the plaintiffs ask-that it be inferred, from the fact of á conveyance without substan

p. 367

tial consideration, while the grantor was indebted to them, and that by reason of the transfer he defeated the making of the plaintiffs’ claim; but the inference may not be indulged in the absence of proof that he had not other sufficient property with which he might meet his debts. So'long as he kept enough to pay his debts with, he was free to give his wife as much as he wished.

The judgment should be reversed and a new trial granted.

Jenks, Hooker, Rich and Miller, JJ., concurred.

Judgment reversed and new' trial granted, costs to abide the final award of costs.