Morris v. Morris — 54 N.Y. St. Rep. 292

Majority

p. 292

Julia Morris, Resp’t, v. John Morris et al., App’lts.

(Supreme Court, General Term, Second Department,

Filed July 28, 1893.)

Headnote

L Fraudulent Conveyance.

Pending an action brought by plaintiff against him, the defendant Morris was told that it was best to put everything out of his hands; he thereupon conveyed real estate worth $5,000, subject to a mortgage of $1,500, to his mother-in-law in exchange for property in Kansas which he had never seen, and which was worth $1,000. Held, that such conveyance was properly held to he fraudulent as to plaintiff.

3. Same—Set off.

Plaintiff became possessed of some property of defendant after she recovered the judgment. Held, that the value of such property was properly set off against the judgment debt.

3, Same—Evidence.

In an action to set aside a fraudulent conveyance, proof of a conversation between defendant and the sheriff in plaintiff’s absence is inadmissible; the sheriff being in no respect the plaintiff’s agent.

Appeal from judgment in favor of plaintiff, and from order appointing a receiver of the premises described in said judgment.

In August, 1891, the plaintiff brought suit against her son, the

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defendant, John Morris, upon an alleged contract made by him to support her and her husband so long as they lived.

In that action the plaintiff claimed that she had given her son numerous articles of furniture and farming utensils, set out at length in the complaint, which were worth $800. That in consideration of such a gift he had agreed to support her.

That complaint also alleged, that the son at that time had and used all of said property, except what had been sold by him.

That action was tried and a verdict rendered for the plaintiff for $164. An execution was issued upon this judgment and returned unsatisfied, whereupon this action was brought to set aside a certain conveyance made by the defendant, John Morris, to Marie S. Crowe.

G. Z. Snider, for app’lts; Arthur S. Tompkins, for resp’t.

The plaintiff is a judgment creditor of John Morris. The judgment was recovered on the 6th of October, 1890. On the 20th of September, 1890, the judgment debtor conveyed a farm of land of about fifty-one acres to the defendant, Marie S. Crowe, by deed in which his wife joined. The plaintiff’s execution was returned unsatisfied and this action is brought to set aside this deed as fraudulent. The defendants aver that there was sufficient personal property to pay the execution issued by plaintiff and that the sale was made in good faith by the debtor of the farm and for an adequate consideration. The trial court found the deed to have been fraudulently given and taken. The evidence sustains the finding. The plaintiff had brought her action to recover the judgment which she did obtain and in September previous, the debtor was told that it was best “ to put everything out of his hands,” to which he replied that “ he supposed it would be a good thing.” This was in the presence of the grantee, Marie S. Crowe. Mrs. Crowe was the mother-in-law of the debtor and lived with him and his wife. Ho money was paid for the deed. The pretended consideration was eighty acres of land in Kansas. The debtor had never seen the land there and it was worth $1,000. This, if true, would make out no adequate consideration for the farm worth $8,000 with a mortgage on it of $1,500 only.

The case is a clear one where a debtor interposed a title between-his property and his creditor to hinder, delay and defraud the-creditor. Alter the recovery of the judgment by plaintiff, she-became possessed of certain articles of personal property belonging to the debtor. The proof is not very clear what this property was nor what was its value. It was proven by plaintiff not to have been worth twenty-five dollars by one witness and the plaintiff testified that it was not worth ten dollars. The trial judge found the value to be seventy-five dollars and deducted it from the judgment debt. The debtor has no cause, from this finding and under this proof, sufficient to reverse the judgment as to the deed. The proof of a conversation between the defendant and the sheriff was properly rejected. The sheriff was not a party to the action and was in no respect the plaintiff’s agent because he had in his hands an execution in her favor against the judgment debtor.

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The inquiry as to the value of this personal property was necessary to determine what was equitable between the parties. It would have been inequitable to set aside the transfer in favor of a plaintiff who had in her hands personal property of the debtor without applying the value of the same upon her debt.

The judgment should be affirmed, with costs.

Dykman and Pratt, JJ., concur.