Phillips v. Wooster

This action was brought by the Plaintiff, a judgment-creditor of the Defendant, George H. Wooster, to enforce payment of his judgment out of certain leasehold property conveyed by the Plaintiff to the Defendant, Emma C. Wooster, the wife of the other Defendant, and .is based upon the allegation that George C. Wooster paid for the property, and that the same is, therefore, liable for his debts. The action was tried at the New York Special Term, before Mr. Justice Allen, who found as follows : “ In March, 1858, the Plaintiff entered into a written contract with the Defendant, Emma C. Wooster, to sell and convey to her the leasehold premises mentioned and described in the complaint, and on or about the first day of May, 1858, a proper deed of conveyance to vest the title of said premises in the said Emma C. Wooster was executed by the Plaintiffj and at the same time a bond and mortgage on the premises to secure that part of the purchase money for which a credit was to be given, were executed by the Defendants. Prior to this, two payments had been made on account of the purchase money, and the deed and bond and mortgage were left with William Peet, Esq., to be delivered to the parties entitled to the same, respectively, when that part of the purchase money which was to have been paid by the first of May should be actually paid. This was paid about the 26th of June, when the deed and mortgage were delivered by being handed to the proper officer for record, and- the sale was fully consummated, and the title to the premises, subject to the mortgage, vested in the Defendant, Emma C. Wooster. The money paid before the actual delivery of the papers, and which constituted one-half of

There is no allegation in the complaint, and no finding or evidence of actual fraud on the part of the Defendants. In either is there any allegation, or finding, or evidence, that at the time when George II. Wooster gave his wife the money and property out of which the purchase money actually paid arose, he was indebted to the Plaintiff or any other person. Under such circumstances I am Amable to see on what ground the Plaintiff can make a Adalid claim to apply the property in question to the payment of his judgment. In the first place, the gifts and voluntary conveyances of George II. Wooster to his wife, made without fraudulent intent, at a time when he was indebted to no one, were in equity valid and effectual, and are not to be called in question in a Court of Equity by his subsequent creditors (Sexton v. Wheaton, 8 Wheat. 229 ; Neufville v. Thomson, 3 Edw. Ch. R. 92; Borst v. Spelman, 4 Coms. 284). Subsequent indebtedness cannot be invoked to make that fraudulent which was hon

But again, the position which the Plaintiff occupies in relation to the transaction complained of as fraudulent, excludes him from alleging the fraud, or claiming any benefit against it. The conveyance against which he now seeks to derive advantages from the property, was made by himself, with a full knowledge of all the facts as they existed at the time, as we are bound to presume, since he has shown nothing to the contrary (Grant v. Morse, 22 N. Y. R. 323). So that if the money paid was the debtor’s, as he now insists it was, and the conveyance to the wife, therefore, fraudulent as against creditors, it was not fraudulent as against him, for he was not only consenting to the act, but himself performing it. Surely the maxim volenti non fit' injuria must be admitted to be applicable in such a case. It is no matter, therefore, whether he was a creditor at the time or not. Admitting that he was, he has excluded himself from the advantage which the statute provides for creditors in such cases.

I am of the opinion that the judgment is right, and should be affirmed.

All concur in the above opinion except Geovee, J., and Hunt, J. They concur in the result.

JOEL TIFFANY, State Reporter.