Truesdell v. Sarles

This is a contest between the plaintiff as executor of one Darius Truesdell, a judgment creditor of Henry J. Sarles, with execution issued and returned unsatis

The defendant Adaline by answer put in issue the allegations of the complaint, alleged that the deed to her was upon the actual consideration of $1,000 as expressed therein, and made for the purpose of conveying to her the legal title, with no intent to defraud any creditor or other person, but in good faith. The answer of Henry J. Sarles, so far as any question here is concerned, was in substance the same.

The learned trial judge found that when conveyed to Adaline the premises were subject to a mortgage of $1,000, and so far from finding that she paid no consideration, he found that the conveyance to her was for the consideration set up in her deed and answer, and instead of directing the cancellation of the deed as void, declared that it should stand “ as a mortgage security in the sum of $1,000,” but that subject to it the plaintiff’s judgment should be a lien upon the property, and rendered judgment accordingly, with costs to be recovered of Adaline and Henry J. Sarles. Upon appeal the General Term held that is was justly found that the conveyance was a mortgage, but as Adaline had maintained her defense, she should not pay costs, but on the other hand have

We think the circumstances of the case required the General Term to go further and reverse rather than modify the decision of the trial judge. Upon the issues formed by the pleadings the question was whether the evidence disclosed fraud either in fact or law sufficient as against Adaline Sarles to set aside the deed under which she claimed title. This was the only available ground of relief and the burden of proving it was on the plaintiff. It is hardly necessary to criticise the evidence, for the judgment of neither court follows the plaintiff’s prayer, or the statement of his cause of action. It is therefore in violation of the well settled rule that no judgment can be given in favor of a plaintiff on grounds not stated in his complaint, nor relief granted for matters not charged, although they may be apparent from some part of the pleadings or evidence. (Rome Ex. Bk. v. Eames, 1 Keyes, 588; Wright v. Delafield, 25 N. Y. 266 ; Southwick v. First Nat. Bk., 84 id. 420.)

This point was fairly presented by the exception taken at the close of the plaintiff’s case, and again at the close of the testimony, to the refusal of the trial judge to grant the defendant’s motion to dismiss the complaint, and by exceptions to the refusal to find certain conclusions of law to which his attention was directed.

So far from sustaining the plaintiff’s cause of action, the decision of the Special Term and the final judgment of the General Term not only in effect, but directly affirmed the validity of the conveyance to Adaline. There is not only no finding of a fraudulent intent on her part, but the precedence and right of security with indemnity against costs adjudged to her, are equivalent to a finding that she was innocent of fraud, or notice of any intended fraud on the part of her grantor. She stands then upon the record as a grantee for a valuable consideration, and this, even if inadequate in amount, is sufficient to sustain her title (2 K. S. 137, § 5).

Already encumbered with a mortgage of $1,000, the property was conveyed in pursuance of an agreement that the grantee should have the title in consideration of $1,000, confessedly her own money, advanced and paid towards the building of the house. According to testimony taken upon supplementary proceedings and introduced by the plaintiff, the debtor “ at the time of the transfer, and for years afterwards, was solvent and able to pay his debts at a moments notice.” This evidence was substantially reiterated by the debtor upon the trial, and neither by cross examination nor otherwise was a different state of his affairs presented. It is shown that in 1872, he was dealing with the plaintiff, but he paid fully and promptly, first by note at short intervals, and then met the notes at maturity, according to the usage between them, and although he continued from 1872 to 1881, to buy of the plaintiff, the debt in judgment was in no part an old one, but contracted as the evidence disclosed and the trial judge found, between the 26th of March, 1881, and the 21st of May, 1881. The fact that the plaintiff had given credit previous to the deed, and was not informed, when subsequent credit was given, of the conveyance to the wife, is no evidence of fraudulent intent. (Carr v. Breese, 81 N. Y. 584 .) There are, therefore, no facts or incidents showing-intended fraud, no act susceptible of fraudulent operation, and if there are, in truth, circumstances which would permit a court to turn the absolute conveyance into a mortgage, they are neither alleged in the complaint nor stated in evidence.

Our attention, however, is called by the learned counsel for the respondent to a request made by the defendant and a finding by the trial judge in assent thereto, viz., “ that at the date of said conveyance, July 7,1877, and for three or four Years pre

The exceptions were well taken; to the refusal to dismiss the complaint, for no case had been made out; to the refusals to find as requested, because the evidence wai’ranted nothing less.

Nor was the right to insist upon the point made by the first exception waived by the subsequent request. Having failed to obtain the entire relief asked for, the defendant might demand less without losing any right to complain of the denial of the whole. The cases (Carpenter v. Roe, 10 N. Y. 227 ; Savage v. Murphy, 34 id. 508; Case v. Philips, 39 id. 164; Shand v. Hanley, 71 id. 319), cited by the respondent are not analogous. In all it appeared that the conveyances in question were voluntary. In Carpenter v. Roe the debtor was largely in debt and his solvency contingent upon the stability of the market in which at the time he speculated and failed within fifty days thereafter. In the others the deeds were

Upon the case as now presented the plaintiff failed, the defendant’s exceptions were well taken, and the judgments of the General and Special Terms should be reversed, and a new trial granted, with costs to abide the event.

All concur, except Huger, Oh. J., and Earl, J., dissenting.

Judgment reversed.