1st. On the trial of this action before the referee there was introduced as evidence in the case, on the part of the plaintiffs, the examination of John Campbell, taken in supplementary proceedings before a referee, on the part of a creditor of John Campbell. This was legitimate evidence in the case, so far as it affected John Campbell, and could not have been excluded as evidence in .the case for that purpose. 2d. So, too, on the trial, John Campbell was sworn as a witness, and gave testimony which it was claimed was evidence against the defendant Pose, or at all events was evidence tending to show fraud in the transfer of the said property. '3d. So, too, the declarations of John Campbell made to third persons, showing fraud, were proved on the trial. As against John Campbell, all this evidence was proper, and could *67not have been excluded as evidence in the case. But neither the testimony, the acts, nor the declarations of John Campbell, could be used as legal evidence to implicate Bose, or to fix her conduct as fraudulent; or to divest her of her estate.
Bear the end of the case, and after this testimony had been given, three several motions were made by the counsel of Bose Campbell, before the referee, to strike out the above described evidence as against Bose Campbell. The referee denied each of the said motions, and her counsel duly excepted. We can only regard this ruling as being in effect a decision that this was proper legal evidence against Bose. Such is the necessary effect of the decision. It is more than mere presumption; it is the express negative of a legal and proper request. If he did not intend to consider it as evidence against her, it was his duty to strike it out. This ruling I regard as so clearly erroneous that the judgment must be reversed upon that ground alone.
As the case will doubtless be again tried, to avoid misapprehension, or the belief that the findings and conclusions of law of the referee would be held sound, it might as well be remarked that I do not concur in either the second, third, fifth or sixth findings of fact, nor in his conclusions of law.
When, on the 25th of January, 1867, John Campbell conveyed, and caused to be conveyed, the premises in question, he had no existing creditor to be defrauded. It is neither alleged in the complaint, nor found by the referee, that these conveyances were made to defraud future creditors. How then could creditors be defrauded ? The finding of the fact by the referee, that the conveyances were made with intent to hinder, delay and defraud the creditors of John Campbell, when the whole case shows there were then no creditors to be defrauded, is, in law, simply absurd, or rather a legal impossibility. There is *68no evidence in the case to sustain it as a fact, and the law is clearly to the contrary. If it had been alleged in the complaint, that these conveyances were made with intent to defraud the future creditors of John, and the referee had, upon sufficient evidence, so found, such a case could be sustained; but neither the complaint, nor the trial, procéeded upon any such theory, nor is the report of the referee to that effect.
Our statute of uses and trusts only makes conveyance? fraudulent and void as against the creditors at the time of the conveyance. (1 R. S. 728, § 52. Garfield v. Hatmaker, 15 N. Y. 475.)
But Bose Campbell had, by all the testimony, an equitable interest in the estate, to some extent, if not to the whole. She had some money of her own. She had money advanced to her by persons other than her husband. She had two cows which were turned in towards the purchase of the first lots. Her property remained in it. The increase in value of the property was hers, and did not belong to her husband’s future creditors. She paid a valuable consideration for the property; it was a contract' of purchase. (Dygert v. Remerschnider, 32 N. Y. 639, per Wright, J.)
But even if the conveyance ' from John Campbell to Beynolds, and that from Beynolds to Bose, had been voluntary, the conveyances, as against subsequent creditors of John, would be upheld. (See Dygert v. Remerschneder, supra, 648, and authorities cited.) And see 2 R. S. 127, which declares “ that any conveyance or change shall not be adjudged fraudulent as against creditors or purchasers solely upon the ground that it was not founded upon a valuable consideration.”
The errors, however, of the referee are such that the judgment should be reversed, and a new trial ordered, with costs to abide the event.
*69[Third Department, General Term, at Binghamton, June 6, 1871. Parker, J.In regard to the denial of the motion to strike out the testimony of the defendant John Campbell, and the proof of his declarations, as evidence against the defendant Eose Campbell, I am inclined, under the case of Quin v. Lloyd, (41 N. Y. 349,) to think that the referee was right, and cannot agree that this was cause for reversing the judgment.
Upon the merits, I think, even if the referee might, from the evidence, find that John Campbell had an interest in it, he went too far in ignoring the plain interest' of Eose therein, and holding that John had the entire interest
I therefore concur in the reversal of the judgment, and the graúting of a new trial.
Miller, P. J., also concurred.
Mew trial granted.
Miller, P. J., and Patter and Parker, Justices.]