O'Connor v. Docen

Goodrich, P. J. (dissenting):

The Revised Statutes (Yol. 2 [9th ed.], 1888, § 4) provide that the question of fraudulent intent shall be a question of fact and not of law in all cases arising as to conveyances executed with intent to hinder, delay or defraud creditors, and that no such conveyance shall be adjudged fraudulent as against creditors solely on the ground tlxaf it was not founded on a valuable consideration.

There was evidence tending to show the following facts: Docen was insolvent on the day of his execution of the deed in question; at the same time he transferred his business by bill of sale to one Lindeman without consideration ; a farm of his in New Jersey had been attached by creditors; other creditors were threatening legal proceedings; these facts were known to Kipp.

Docen was indebted to Kipp on- a note for $1,200, dated January, 1897, and on “ I. O. Us.” given for borrowed money, amounting in all to about $1,500. Of his own motion he went to Kipp and offered to convey the house to him. He testified : “ I told him I wanted to sign over the house because I owed him $1,200 that he loaned me in cash. * * * He told me that when he sold the house he would give me back what the house is worth, and I can then pay the wholesalers. * * * I said I wanted this money for the creditors.” After this the deed was executed.

*615There were on the premises in question mortgages of $12,500, which, with arrearages of interest and taxes, amounted in all to $13,000. The plaintiffs gave evidence that the value of the premises was $16,000. Klatzl, another creditor to the amount of $800, in December, 1898, requested Kipp to convey the premises to him and offered to pay him about $15,000, to represent what the property had cost him, and was referred by Kipp to his attorney, who made up a statement of sums which Kipp had loaned to or paid “for Docen, the total amount being $15,632. One of the items was legal expenses, $750.” Another item was for $250, said by Kipp to have been loaned to Mrs. Docen after the deed was executed and for which she had given her note. Klatzl refused to pay the amount demanded, and no deed was ever given by Kipp.

Kipp denied making any promise to Docen to return him anything whatever when he might sell the property, either for the payment of other creditors or for himself, and denied any fraudulent intent, or that there was anything said by Docen about taking the property in order to delay creditors, but admitted loaning to Mrs. Docen the $250 some time after the deed.

There was also evidence to the effect that Docen’s transfer of his business to Lin deman was not without consideration, the latter testifying that it was in payment of Docen’s indebtedness to him for services as clerk, extending through a period of five or six years. The defendant Kipp also produced evidence that the premises in question were worth only $14,000.

Upon this conflicting evidence a question of fraudulent intent arose which the statute declares to be a question of fact; and as such it was properly decided by the court on evidence sufficient to support his adjudication that “ said deed was executed and delivered * * * with the intent to hinder, delay and defraud the creditors of the said defendant Charles Docen, including the plaintiffs herein.” The court also adjudged that Kipp “ claims to own the said premises, by virtue of the said pretended conveyance, collusively given to and accepted by the defendant Herman H. Kipp as aforesaid.” With such adjudication I see no reason to interfere, and think the judgment should be affirmed.

Judgment reversed and new trial granted, costs to abide the final award of costs.