Donohue v. Joyce — 46 N.Y. St. Rep. 373

Majority

p. 373

Walter J. Donohue, Rec’r, Resp’t, v. Alexander Joyce et al., App’lts.

(Supreme Court, General Term, Second Department,

Filed May 9, 1892.)

Headnote

Fraudulent conveyance—Consideration.

Where a person who is indebted at the time, and has previously disposed of his other real estate, conveys a piece of property to his son for $250 above the mortgage thereon, and uses $243 thereof to pay taxes on said property, which the son shortly afterward sells for an advance of $800, the transaction may properly be held to have been fraudulent as to creditors, and the mortgage taken by the son on such sale be deemed assets of the father for the benefit of such creditors. „

Appeal by defendants Joyce from judgment in favor of plaintiff, entered upon the decision of the court, after a trial without a july.

Action by plaintiff, as receiver in supplementary proceedings of Alexander Joyce, to declare a deed from said Joyce to his son to have been made without valuable consideration and to defraud creditors, and to declare the' moneys and mortgage realized from a sale by the son of the property so conveyed to be property of said Joyce and that the same be delivered to plaintiff for collection.

p. 374

It appeared that the property in question was worth about $4,000 and was subject to a mortgage for $3,000: that in 1890 said Joyce borrowed $400 from the judgment creditor on whose application plaintiff was appointed, and delayed proceedings to collect by representing that he was about selling his property, and when sold the note would be paid; that he sold his other property, and on February 27, 1891, the conveyance in question to his son was made for a consideration of $3,250 and he used $243 thereof to pay taxes on the premises so conveyed; that in June following the son sold said premises for $4,000, receiving $500 in cash and a $500 purchase money mortgage.

The court below decided that the conveyance was made to hinder, delay and defraud creditors; that the moneys and mortgage were in equity the property of Joyce, and that said mortgage be delivered to plaintiff.

Allen Taylor, for app'lts; John F. Brennan, for resp’t.

The evidence is satisfactory that the house and lot was worth $4,000, that is to say, about $750 above the encumbrances.

By the arrangement between the defendants, the father conveyed the property to the son for substantially no consideration; that is to say, the small sum which the son was considered to pay was used by the father to pay the taxes on the place which he had just conveyed to the son.

It is entirely plain that the pretence of a consideration moving to the father was but colorable, and was an effort to so obscure . the nature of the transaction as to" make the property safe from the fáther’s creditors.

The proofs were clear and required the judgment that was given. No exceptions appear in the case. Had exceptions been filed they would have been unavailable, as we find no errors.

Judgment affirmed, with costs.

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