Watts v. Wilcox — 37 N.Y. St. Rep. 194

Majority

p. 194

Thomas Watts, Rec’r, Resp’t, v. Franklin A. Wilcox et al., App’lts.

(Supreme Court, General Term, Second Department,

Filed February 9, 1891.)

Headnote

Fbaudulent conveyance—Pabties.

Where there is a common plan for the commission of a fraud between several persons and in pursuance of such common plan certain of such persons take deeds in severalty, all the parties to the plan are proper parties to an action to set aside such deeds.

Appeal from order overruling demurrers to the complaint.

Bacon & Merritt, for app’lts; W. F. O'Neil, for resp’t.

The complaint states that the defendant, Horatio R. Wilcox, was a large stockholder in the Middletown National Bank. That the bank failed and an assessment was made of one-hundred per cent on his stock to pay debts and liabilities. That Wilcox failed to pay and that the receiver of the

p. 195

bank sued him and obtained a judgment against him and that the plaintiff is the receiver appointed upon proceedings in that action. The complaint then avers that Horatio E. Wilcox and the other defendants formed a plan by which nearly all of the property real and personal of the judgment debtor should be put “ out of his hands.” That a part of the scheme was through a judgment of the court by which the heirs of Henry Kinsley, Sr., were to establish large claims against Horatio E. Wilcox as administrator of that estate. That these claims were wholly without foundation because the estate had been fully administered. That the judgment established these pretended claims and that Horatio E. Wilcox made individual and several conveyances to the parties. That all the parties to the judgment knew the apparent judgment debtor was stripping himself of his property to avoid the bank debt. The complaint further avers that the debtor assigned,with intent to cheat and without consideration, certain property to bis daughter Mrs. Slauson. That the deed was put on record without delivery and without the knowledge of Mrs. Slauson. •

The defendants Franklin A. Wilcox, Sarah M. Wilcox, Henry K. Wilcox and Olivia Slauson demur separately. The demurring parties are all necessary. They all formed the design of taking the debtor’s property, and the defendants Wilcox did take it under and in pursuance of the plan formed. They each had no claim. Mrs. Slauson was a party to the design but she got nothing but a naked title, which was put on record so as apparently to vest a title in her. The court in this action cannot set aside this conveyance without bringing in Mrs. Slauson. The complaint goes much farther as to her. She agreed to the plan. She knew of the insolvency of the grantor. She agreed with the other defendants, except Ely, to delay the creditors, and if, in pursuance of the scheme, the debtor put property in her name without her knowledge of the transfer being specifically-made to her, she cannot hold the property against the plaintiff as receiver. Where there is a common plan for the commission of a fraud between several, and in pursuance of this common plan individual conspirators take deeds in severalty, all the parties to the plan are proper parties to «an action to undo the wrong accomplished. Fellows v. Fellows, 4 Cow., 682 .

In equitable actions all who are in any way interested are proper parties. Haines v. Hollister, 64 N. Y., 1 ; Henderson v. Henderson, 3 N. Y. State Rep., 197.

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

Dykmam and Pratt, JJ., concur.