Drury v. Wilson — 4 A.D. 232

Majority

p. 232

Alfred C. Drury, Respondent, v. L. Howard Wilson, as Late Sheriff of the County of St. Lawrence, Appellant.

Headnote

Bill of sale — what is an immediate change of possession—a failing debtor may, prefer a creditor by a bill of sale.

In an action brought tp recover damages resulting from a conversion of goods it appeared that Murray N. Ralph executed to the plaintiff, who was an indorser upon several notes made by Ralph, a bill of sale of goods in his store, and at the same time conveyed to him certain accounts and real estate; that immediately after the purchase the plaintiff took the keys of the store, locked the door, made a temporary arrangement with Ralph to act as his clerk, and opened the store early the next morning, w'hen the defendant levied upon the property in question. There was no evidence tending to show that the price plaintiff paid for the property, which was the assumption by him of certain indebtedness, a part of which was evidenced by the notes which he (the plaintiff) had indorsed, was inadequate.

Held, that the plaintiff was entitled to recover;

That the evidence justified a finding that there was an immediate change of possession under the bill of sale;

That it is now well settled that a failing debtor may prefer a creditor by means of a bill of sale.

Appeal by the defendant, L. Howard Wilson, as late sheriff of the county of St. Lawrence, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of St. Lawrence on the 4tli day of September, 1895, upon the report of a referee.

The action was brought to recover damages for the conversion of certain goods, alleged to have belonged to the plaintiff, which the defendant, as. sheriff of St.. Lawrence county, levied upon and sold under executions against one Murray N. Ralph.

Frank N. Cleaveland and Ledyard P. Hale, for the appellant.

A. Z. Squires and John C. Keeler, for the respondent.

The plaintiff claimed title to the property described in the complaint under a bill of sale from one Murray 1ST. Ralph. The defendant, in his answer, alleged that said Ralph, being at the time insolvent, executed said instrument for the purpose of hindering,

p. 233

delaying and defrauding his creditors. The question as to his intent was one of fact, and the learned and experienced referee before whom the case was tried has found in favor of the plaintiff. After a careful examination of the testimony we are of the opinion that it sustains his conclusions.

It is not denied that the transfer by Ralph to the plaintiff was made to pay honest debts of the former amounting to $3,'TOO, besides the interest thereon. A part of this indebtedness was evidenced by promissory notes of Murray N. Ralph upon which the plaintiff was indorser.

The bill of sale was executed late in the afternoon of December 25, 1894. Immediately after the purchase plaintiff took the beys of the store, locked the door and the next morning at an early hour opened the store, making a temporary arrangement with Ralph to act as his clerk. Shortly afterwards, while plaintiff was absent from the store, the defendant levied upon and took possession of the property in question. The evidence clearly justified the .finding that there was an immediate change of possession under the bill of sale.

The defendant failed to show that the plaintiff paid such an inadequate ¡Drice for the property as to indicate a fraudulent intent. The debts assumed by him amounted to $3,100 besides interest. The referee found the value of the goods to be $3,463.50. Two hundred dollars were collected from the accounts assigned at the same time, in all $3,663:50. It was not shown that the real estate which Ralph at the same time conveyed to the plaintiff was of any value. The evidence tended to'show that it was not worth any sum over the incumbrances thereon. The value of the claim against Eldredge and Seymour, which was then in litigation, does not appear. The plaintiff and Ralph might naturally and properly bear in mind that though the goods were thought to be worth $3,600, yet the amount that the former would receive therefrom after paying rent of store and other expenses would be far less than that sum. It is certainly doubtful whether the plaintiff if he had been allowed to dispose of the goods and realize all that he was able to from the property conveyed to him by Ralph at the time in question would have collected more than the amount of the debts he assumed.

p. 234

There was a conflict in the evidence as to the value of the prcq> erty converted by the defendant. "We are not authorized to oveiv rule the finding of the referee on the question of fact submitted to him as to such value.

It.being now settled that a failing debtor may prefer a creditor by a'bill of sale (London & Ano. v. Martin, 79 Hun, 229 , and cases cited), we see no reason to doubt that a correct conclusion was reached by the referee, and that the plaintiff, under the bill of sale in question, obtained a valid title to the, property for the value of which he recovered judgment.

- ■ Hone of the- rulings of the referee on the trial require a reveiv sal of the judgment.

Judgment affirmed, with costs.

All concurred.