Carver v. Barker — 26 N.Y.S. 919

Majority

p. 919

(73 Hun, 416.)

CARVER v. BARKER et ux.

(Supreme Court, General Term, Fourth Department.

December 8, 1893.)

Headnote

1. Fraudulent Conveyances—Evidence—Recording Deed.

The fact that a voluntary deed to the grantor’s wife was promptly recorded is not conclusive that the grantor did not intend to defraud his subsequent creditors, but may be considered in determining the intent 8. Same—Admissions of Grantor.

In an action against a grantor and grantee to set aside a deed as in fraud of creditors, it is not error to admit statements made by the grantor, and evidence of his circumstances, where the court expressly limits the effect thereof to the grantor.

Appeal from special term, Broome county.

Action by Elden R. Carver, as receiver, against David F. Barker and Ida B. Barker. From a judgment in favor of plaintiff, defendants appeal.

The opinion of Mr. Justice PARKER at special term is as follows:

The conveyance of the property on De Russey street, by Barker to his wife, left him utterly insolvent. He was then owing his father some $1,400 or $1,900, and aside from a lot of store accounts that are not collected, and are evidently but of little value, and aside from the real estate, he had barely $500 to pay it with. Being in this condition, he had evidently formed the idea that, so far as subsequent creditors were concerned, he could put his property in his wife’s name, and thus remove it beyond their reach. His statements-to several of the witnesses show that such was his idea. He thereupon conveyed to her all his real estate, practically without any consideration whatever,, and, moreover, without any apparent reason or motive other than a mere change of the title from himself to her. The theory now advanced—that he wished to protect her in case of his death—does not seem to me to be sustained by the circumstances of the case. His health was not in a critical condition,— no more so than was hers. They are both young people, without children, and it is quite improbable that he would have rendered himself insolvent for the mere purpose of providing for her in anticipation of his possible death, when, if she had died before him, the property would pass to her relatives instead of to him. After the transfer, he really continued in the management and control of it, and proceeded to carry out his plan, previously formed, of exchanging it for a farm. Evidently, the exchange, and all the business by which the farm and the Morgan street property was acquired for the De Russey street property, was brought about by him, and pursuant to his directions, and the apparent ownership of that property and of the farm, after they moved onto it, was, so far as its management indicated, in him. He also-,

p. 920

after the conveyance to his wife, continued, to purchase property in his own name on credit, and in some instances, when inquiry was made, falsely stating that he still owned the De Iiussey street property; in other instances, purchasing material, with which to repair and improve the house, in his own name and on his own credit. A large'amount of the property so purchased by him on credit, within a few months after the transfer to his wife, he mortgaged to his father to secure the debt of $1,400 or $1,900 owing to him, and thus he provided, at the expense of subsequent creditors, for liquidating the debt existing at the time of the conveyance to his wife, and at the same time took care that his father lose nothing by the transaction. From all the evidence in the case, I have no doubt but that the purpose and intent of Barker was to accomplish just what his act resulted in, to wit, to buy property in his own name, and on the credit of his apparent ownership of the property which he occupied, sufficient to repair the house, stock his new farm, liquidate his debt to his father, and obtain as much more as could be procured on credit before the changed condition of his affairs became known,—all without paying for the same, or rendering the property which was so recently his, and on which his credit was based, liable for the same. It is earnestly urged by the defendants’ attorneys that because the deed to the wife was promptly recorded, and thus notice given to all that Barker no longer owned it, such -a transfer cannot be held fraudulent as against subsequent creditors. That the conveyance was recorded is, of course, a fact to be considered in determining what the intent of the parties was. Beyond that, it has no bearing on the case, because, if the intent was to defraud, the conveyance is void, whether recorded or not. The recording of the conveyance might, to some extent, interfere with a plan to obtain credit on an apparent ownership of the property; but not only the practical effect of it in this case, but also our every-day experience, shows that such constructive notice operates but very little to prevent such credit being obtained for some time after the record is made. Few dealers search the records from month to month, to see whether their customers still own the property they occupy, and Barker, I fancy, was not unaware of that fact. If his purpose was to notify all dealing-with him that he no longer owned the property where he was living, he would have better succeeded, and dealt more honestly with them, had he told them of his changed condition, instead of lying as to some, and suppressing the truth as to others. As to his wife’s having knowledge of his intent and purpose, I have no doubt but that she fully understood it. She could have hardly known all the facts, as she did, without so understanding it. But, whether she did or not, she is a mere grantee without consideration, and has no equity that should be protected against the claims of these creditors. Starin v. Kelly, 88 N. Y. 418 ; Loos v. Wilkinson, 110 N. Y. 195 , 18 N. E. 99 . The property transferred by Barker to his wife has passed into the ownership of a bona fide purchaser for value, and is therefore protected against the claims of Barker’s creditors, but the property taken in exchange therefor, in equity, takes its place, and should be applied to the satisfaction of such claims.

Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.

Babcock, Sperry & Van Cleve, for appellants.

Cortland Wilber and A. D. Wales, for respondent.

After a perusal of the evidence bearing upon the vital issues in the case, the conclusion is reached that the trial court, was warranted in finding a fraudulent intent on the part of the husband, with the knowledge thereof in the wife, to the extent stated in the findings of fact made by the trial judge, and the opinion delivered by the trial judge meets with our approval. This case' differs quite essentially from Neuberger v. Keim, 134 N. Y. 36 , 31 N. E. 268 .

2. When Florence was upon the stand as a witness, he was allowed to state a conversation held with David

p. 921

objection being taken to portions of the evidence, the court observed: “You object to all his statements to this witness, and I allow them for the purpose stated.” The court had theretofore observed: “I will receive it as tending to show a fraudulent intent on the part of David F. Barker.” A ruling was made, when the witness Brown was upon the stand, to the effect that the evidence would be received “as bearing upon the question of what his intent was.” The ruling was repeated when the witness Ford was upon the stand; and when the plaintiff proposed to prove, by Barker himself, his situation and circumstances as to property, objections were stated by the defendants, and thereupon the court observed: “The objection is sustained as to-Ida B. Barker, and evidence received as against David F. Barker, as showing his intent.” We think no prejudicial error was committed by the court in the rulings adverted to. Manifestly, the court intended to keep within the rule as laid down by this court in Scofield v. Spaulding, 54 Hun, 523 , 7 N. Y. Supp. 927 , in which case it was held that the admissions or declarations of the grantor were competent evidence as against himself, as he was a party defendant. We discover no intention on the part of the trial judge to hold that such declarations were admis.sible or binding upon the female defendant, or to make a ruling contrary to our holdings in the Spaulding Case.

3. Nor do we think it was error to prevent the defendants from reading certain portions of the evidence taken in supplementary proceedings, at folio 266. The witness Barker was at the trial, and his evidence was available to the defendants upon all the essential and material points raised during the trial. Some other rulings were made during the trial, to which attention has been given, and in them we find no error requiring us to disturb the conclusion reached at the special term. Judgment affirmed, with costs. All concur.

Cases cited

Starin v. Kelly 88 N. Y. 418 N.Y. 1882-03-31 p. 920
Loos v. Wilkinson 110 N. Y. 195 N.Y. 1888-10-03 p. 920