Curtin v. Curtin — 34 N.Y. St. Rep. 958

Majority

p. 958

Edward J. Curtin, Resp’t, v. William H. Curtin et al., App’lts.

(Supreme Court, General Term, Second Department,

Filed December 8, 1890.)

Headnote

Deed—Reconveyance.

Plaintiff, to avoid claims of creditors, conveyed real estate to Ms brother, defendant, ■without Consideration. Subsequently the brother reconveyed to him, but afterward, with plaintiff’s consent, mutilated the deed by cutting out his name, under an agreement to give a new deed when certain payments were made, but conveyed the property to his wife, whom he had married in the meantime. Held, that plaintiff was entitled to a decree that defendants execute a new conveyance to him.

Appeal from judgment decreeing the cancellation of a deed made by plaintiff to defendant conveying certain real nrooerty at Gravesend and a reconveyance thereof to plaintiff.

Horace Graves, for app’lts; A. J. Spencer, for resp’t.

The real estate in question was deeded by the plaintiff to his brother, William H. Curtin, without consideration, and with the intent to interpose a title against a claim held by another brother or by his general creditor. If there were no other facts to be considered, the case would be a plain one where a court of equity would not aid the plaintiff in a recovery of the property A deed, however, was given by the defendant William H. Curtin to his brother Edward J. Curtin, about a year after he received the title from plaintiff.

The defendant William H. Curtin was then unmarried. This •deed was delivered to the plaintiff and by him left for record in the register’s office of Kings county. The effect of this conveyance was to vest the title again in the plaintiff, for there is no principle which prevents a fraudulent vendee from reconveying the property to the fraudulent vendor. The title never again got in the defendant William H. Curtin. He subsequently obtained the consent of his brother, the plaintiff, to cut out or otherwise mutilate his name which was upon the deed, but this act neither destroyed the plaintiff’s title or transferred it to the grantor again.

The defendant, Catharine F. Curtin, has no better right than her husband. The complaint avers that she claims an interest in the property derived from her husband and she denies this in her answer. The complaint avers that the wife’s interest was taken with full knowledge of the facts, and she denies this but sets up no claim whatever. The proofxof the deed from her husband to herself, under the pleadings, gave the wife no rights under this recording act as a purchaser for value and without notice of the plaintiff's rights, and the court was justified in the finding that her deed from her husband gave her no title as against the plaintiff. The decree that the defendants give a deed in the place of

p. 959

the one destroyed was reasonable and proper. The proof shows that the defendant, William H Curtin, destroyed his deed for his own purposes and benefit and under a purpose to give a new one. There is no question under the statute of frauds as to fraudulent conveyances as to the arrangement, and there is no reason why the defendants should not carry it out.

The judgment should, therefore, be affirmed, with costs.

Pratt, J., concurs; Dykman, J., not sitting.