McConnell v. Barber

This was an action in the nature of a creditor’s bill Its purpose was to set aside a deed given by George F. Barber to the defendant Marcellie I. Barber. The defendants were husband and wife.

The Special Term found that the deed was made in good faith, without any intent to hinder, delay or defraud the creditors of George F. Barber, the judgment debtor; that 'it was based upon a good and sufficient consideration; held that the conveyance in question was valid, and directed a judgment accordingly, with costs.

The appellant contends that the findings of the trial court were against the weight of evidence, and should not be upheld. A thorough and careful examination of the evidence discloses that the question of the intent with which the conveyance under consideration was made, was one of fact to be determined by the trial court. While there were circumstances which, unexplained, might have justified the court in inferring that the transfer was fraudulent, yet, if the court gave credit to the evidence of the defendants and their witnesses, it was sufficient, we think, to justify the decision of the trial court.

Where a review of the facts by an appellate tribunal is proper, it is under no obligation to arbitrarily adopt the conclusions of the trial court. Yet, great consideration will be accorded to its opinions, especially where there is evidence on both sides and the mind of the court has been called upon to weigh conflicting statements and inferences and to decide upon the credibility of opposing witnesses. In reviewing the determination of a trial court in such a case, the • appellate court is not warranted.in reversing upon the sole ground that in its opinion the trial court should have reached a different conclusion. To justify such a course it should appear that the find

The fact that the indebtedness to the wife of the judgment debtor, which was the consideration for this transfer, was barred by the Statute of Limitations, and had been standing twenty-seven or twenty-eight years without the payment of any interest thereon, was a circumstance to be considered by the trial court in determining tii© question of good faith; but it was not controlling, as the Statute of Limitations might be waived and the transfer be valid as to creditors. (Bump on Fraud. Conv. 220.)

The appellant also insists that, as the consideration for this transfer consisted to a great extent of compound interest, it was invalid. In Stewart v. Petree ( 55 N. Y. 621 , 623) Allen, J., said : “ But a prospective agreement, after the interest has accrued, to pay interest-thereon, is valid; and money paid for compound interest cannot be recovered back. So, too, a security for interest upon interest, given after it has accumulated, and in the absence of any prior undertaking to pay it, is valid, and supported by a good consideration.” At its last term, in a case in which no opinion was written, this court. held that a note payable in future, given for compound interest, was valid, and could be enforced. Following the doctrine of these authorities leads to the conclusion that, if the transaction between the defendants was free from actual fraud or fraudulent intent, the consideration was sufficient to uphold the conveyance in question.

Although it must be admitted that, if the consideration for this ■ transfer was fictitious, and, consequently, fraudulent, and such fraud was participated in by both parties, it would be void, yet, as in this - case the court has, upon sufficient evidence, found that the consideration was not fictitious or the transfer fraudulent, that principle has no application.

Hardin, P. J., and Merwin, J., concurred.

Judgment affirmed, with costs.