Brooklyn Bank v. Lamon — 31 N.Y. St. Rep. 191

Majority

p. 191

The Brooklyn Bank, Appl’t, v. Archibald Lamon et al., Resp’ts.

(Supreme Court, General Term, Second Department,

Filed May 12, 1890.)

Headnote

Deeds—Husband and wife—Consideration.

A deed from husband to wife is supported by a good consideration where it is given in repayment of moneys received by the husband from the wife under the provision that he would repay her with interest, even though they were married before the married woman’s acts.

Appeal from so much of a final judgment as dismisses the •complaint as against defendant, Mary Lamon.

Judgment creditor’s action to set aside two conveyances of real estate made by Archibald Lamon to Mary Lamon, his wife, for a discovery of property of Archibald Lamon, the appointment of a receiver, etc.

Lyon & Smith, for appl’t; W. J. Townsend, for resp’ts.

The case shows that Archibald Lamon and Mary Lamon were married in 1843 or 1844. That the wife at the time of her marriage had one thousand pounds sterling in her own right. That this money was advanced to her husband, and by him used in the support of the family, under an agreement that he would repay her with interest. That subsequently the husband repaid her considerable sums on account of the loan, which was deposited by her in savings banks. This money was withdrawn by her and again loaned to her husband under the provision that he would repay her with interest. The husband, in 1886, conveyed the land in question to her in payment of the said loans. There is no question of inadequacy of consideration other than is implied from the fact that the consideration being the repayment of these loans was insufficient in law. That because the parties were married before the married woman’s acts were passed, the money belonged in law to the husband. The point is decided against the appellant in the case of the Syracuse Plow Company v. Wing, in 85 N. Y., 421 .

In that case the money was loaned by the wife to her husband on a provision to repay the same, and the court say “ that if the money was received by the husband as his wife’s, and to be accounted for by him to her, he waiving his natural rights thereto, she had an equitable right thereto sufficient to sustain the mortgage which he subsequently gave to secure it, and the mere lapse of time would not invalidate the security. Woodworth v. Sweet, 51 N. Y., 9 ; Jaycox v. Caldwell, id., 395; Babcock v. Eckler, 24 id., 623; McCartney v. Welch, 51 id., 626; Bishop on Married Women, § 119.”

The marriage was in that case entered into in 1844.

The referee is supported therefore by this case in his finding of :a good consideration for the deed, and the question of intent to

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defraud is one of fact, and the referee has found that the conveyance was not made with any intent to defraud creditors.

The judgment should he affirmed, with costs.

Pratt, J., concurs.