Allee v. Slane — 26 A.D. 455

Majority

p. 455

William H. Allee and Others, as Executors and Trustees, etc., of Joseph B. Allee, Deceased, Appellants, v. John T. Slane and Cecelia I. Slane, Respondents.

Headnote

Creditor’s action to set aside a conveyance from a husband to his wife —presumption of fraud—failure of proof that the husband was insolvent and was indebted to the plaintiff when the conveyance was made.

Semble, that a conveyance made by a husband to his wife is presumptively fraudulent as to the husband’s creditors, but an action brought by a creditor of the husband to set it aside must fail where it'is not shown that he was a creditor when the transfer was made or' that the husband was then insolvent.

Appeal by the plaintiffs, William H. Allee and others, as executors and trustees, etc., of Joseph B. Allee, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 11th day of February, 1897, upon the decision of the court rendered after a trial at the Kings County Special Term dismissing the complaint.

William H. Sage, for the appellants.

M. F. McGoldrick, for the respondents.

It will be conceded, as contended by the counsel in behalf of the plaintiffs, that a conveyance by a husband to his wife will always be carefully scrutinized, and that as to creditors it is open to the pre-' sumption of fraud, but in the case at bar the plaintiffs have failed to establish that they were creditors at the time the transfer was made, or that the defendant John T. Slane was insolvent at the time of the delivery of the deed to his wife. It is true that there is some conflict in the statements of the defendants in respect to some of the details, but these cannot avail to give the plaintiffs a cause of action in the absence of affirmative evidence to show that the transfer of the property was made after the indebtedness of the defendant and at a time when he was otherwise insolvent. The trial court, on a hearing of the evidence, decided that “ at the time of the making, delivery and recording of said deed to Cecilia I. Slane the defendant John T. Slane was solvent and had sufficient property to meet all his obligations,” and that “at the time he was not

p. 456

indebted to the plaintiff,” and a careful examination of the testimony affords no good grounds for disturbing tliis finding of fact or the conclusion of law based upon such finding. . The plaintiffs, haying failed to establish a condition of facts which brings the defendants within the presumption which the plaintiffs’ counsel ■ urges, it is unnecessary to consider the authorities cited!

The judgment of the trial court is affirmed, with costs to the defendants. - -

AH concurred.

' Judgment affirmed, with, costs.