Lawrenceville Cement Co. v. Parker — 39 N.Y. St. Rep. 864

Majority

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The Lawrenceville Cement Co., App’lt, v. S. Webber Parker et al., Resp’ts.

(Supreme Court, General Term, Second Department,

Filed July 2, 1891.)

Headnote

1. Fraudulent conveyance—Consideration.

In an action to set aside as fraudulent as to creditors a conveyance by defendant to his son, it appeared that the property was worth $50,000, and was subject to a $10,000 mortgage; that the son had advanced his father $4,000; that in consideration of the conveyance, debts of the father to the amount of about $13,000 were released, and that the son gave a mortgage of $30,000 to secure a debt of the father. Held, that a sufficient consideration was shown, and that the evidence justified the conclusion that there was no intent to hinder or defraud creditors.

2. Mortgage—Banks.

A mortgage given to the cashier of a bank to secure an indebtedness to the bank in pursuance of a previous arrangement between it and the mortgagor, is a valid security in favor of the bank.

3. Trial—Refusals to find.

A refusal of several requests to find in a single sentence is equivalent to a refusal of each singly, and is as valid as if marked against the margin of each one singly.

4. Same.

A refusal to find as requested is not equivalent to a finding to the contrary.

Appeal from judgment dismissing the complaint upon the merits.

Action to set aside two deeds executed and delivered by the defendant, S. Webber Parker, to his son Charles Warren Parker as fraudulent. The property conveyed consisted of about 382

p. 865

acres of land at Mamaroneck, which the supervisor of the town testified was worth about $50,000. There was a mortgage on said land for $10,000. The conveyances were made in pursuance of a previous agreement by which the property was to be conveyed to Charles on his arriving at full age, in consideration of which his mother released her dower and gave up notes to the amount of $3,054 held by her against her husband, and his grandfather released a claim of $10,000 against the grantor. Charles had previously advanced his father $4,250, the proceeds of sale of some horses belonging to him, and at the time of the conveyances gave a mortgage on the premises for $30,000 to one Burns, the cashier of the American Exchange National Bank, to secure an indebtedness of his father to the bank, .which Burns assigned to the bank. The court found that there was no intent to hinder or delay creditors; that the conveyances were valid; that the mortgage to Burns was a valid and existing lien, and that the bank was the owner thereof. Plaintiff presented numerous requests to find, at the end of which the court noted “ all refused,” but did not mark the refusal on the margin of each request

Wm. H. Arnoux, for app’lt; B. Doran Killian, for S. Webber Parker, resp’t; Wilson Brown, Jr., for Charles W. Parker, resp’t; Michael H. Cardozo, for Edward Burns, resp’t.

—We think the evidence in this case justified the learned trial judge in his conclusion that there was no intent to hinder, delay or defraud S. W. Parker’s creditors by any party.

There were divers claims against S. W. Parker which were released in consideration of his conveyance to C. W. Parker, and the latter, as another element of the consideration, gave his bond for $30,000, and his mortgage to Burns covering the premises, to secure this $30,000, which the grantor actually owed to the American Exchange Bank, of which Burns was cashier. Burns accepted this mortgage for the bank, with its privity and discount, pursuant to a previous bona fide arrangement made between it and the Parkers.

We see no difficulty in recognizing this mortgage as a valid security in favor of the bank, though it was given to Burns in his own name. Price v. Brown, 98 N. Y., 388 , was a case where a mortgage was given to a mortgagee for $50,000, of which $5,000 was for the .benefit of another, and the court enforced the implied trust, although it was made out wholly by parol proof. At all events, we fail to see how this question concerns the plaintiff.. It was not harmed in any way. There was a $30,000 debt to the bank by the elder Parker, which had been secured by his grantee pursuant to a previous bona fide agreement.

We are not disposed to interfere with this decision because the trial judge refused all of the plaintiff’s requests, or propositions of fact, in a single sentence instead of marking his refusal against the margin of each one singly. That was a refusal of each singly. If any refusal was erroneous, the error may be pointed out and is available for plaintiff quite as certainly under this form of refusal

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as if the trial judge had dealt with each one separately; But no such error has been pointed out

The proposition that the findings are inconsistent is too fanciful to be real. It is based on theory; indeed it is plainly argued as a general proposition that the legal effect of a refusal to find is to find the contrary. We cannot assent to this proposition. A judge may properly refuse a proposition because the fact has been already found, either upon the adversary’s propositions or in the decision 'itself. There is no inconsistency on such a record. So, too, it may be refused because it was immaterial. The trial judge is not bound to state the reasons for a refusal It is enough if his refusal may be fairly justified in any view of the case.

We have examined the exceptions to the judge’s rulings during the trial, and see no occasion to question their propriety. The admission of the Warren release, although executed after the suit was commenced, did no harm. The bargain had been previously made that Warren would release S. W. Parker if he would convey to C. W. Parker, and the grantor was, in law, released the moment he accepted the offer by making the conveyance. The writing was merely a performance of the oral agreement. The real question was whether or not the oral bargain was in fact made, and that is covered by the finding that it was made and that there was no fraudulent intent. ¡Nor do we find any matter which seems to be worthy of serious consideration in the refusal to strike out a part of S. W. Parker’s answer. The facts were all developed, so that, even if there was any technical misstatement, it was corrected. The other alleged errors concerning which complaint is made have been already incidentally considered.

The judgment must be affirmed, with costs to each respondent.

Barnard, P. J., concurs; Dykman, J., not sitting.