The defendants in this case excepted generally to the conclusions of law found by the court. They also excepted to that part of the decision holding that Cordelia Johnston had a just and equitable claim against her husband’s estate to the extent of $150, and interest from the spring of 1849, and that beyond the payment and discharge of said claim, the deed by the defendant Richard N. Johnston was without just consideration, and was voluntary and made with a view and for the purpose of defrauding the plaintiff in the collection of his cause of action. They also excepted to the decision holding that the equitable claim of said Cordelia against her husband’s estate at the time of trial, amounted to $412.50. In the consideration of the questions involved in the case, we are led to consider first the situation of the plaintiff and his right to maintain the action to set aside the deeds for fraud. Tne plaintiff prosecuted the defendant Richard N. to recover damages in an action for assault and battery. The cause of action accrued, and suit was brought prior to the conveyance by Richard N. The judgment was recovered after the conveyance made by Richard N. to his son, and from the son to the defendant Cordelia. The plaintiff was, therefore, a subsequent creditor, and was bound within the authority of Seward v. Jackson (8 Cow., 437); Dygert v *568Remerschnider (32 N. Y., 649), and many other leading cases, to show actual fraud, to entitle him to a decree setting aside the conveyance. The court did find as a question of fact, that in making the deed, whereby the title became ultimately vested in the wife, the husband made such conveyance with the intent of defrauding the plaintiff, and that the deed was without just consideration and voluntary, except as to an equitable claim which the wife had against her husband’s estate to a small amount, for moneys belonging to her, and which with its accumulations of interest, constituted a part of the purchase-money of the lands in question, and in equity belonged to the wife. The deeds would not be set aside as to existing or subsequent creditors upon the ground they were voluntary and without consideration, because there was in part a consideration, and as to such part they were not voluntary; but when, as in this case it was made to appear that the property conveyed was of the value of $3,000, and that there was an interest in the property of over $2,500 belonging to the husband, and that the husband had no means or property to pay his debts and demands then existing against him, and that he had been sued by the plaintiff but a few days prior to conveying the property, that he had declared that he had got his property all right, that he had deeded it to his wife, and that plaintiff could not collect any thing of him, and that his wife never, in fact, paid but $150, I say when all this is made to appear in the evidence, and the fact is passed upon by the court declaring that the deeds were made with the actual intent to defraud this plaintiff; of his claim, how can the transaction be upheld as otherwise than fraudulent and void ? The conveyance was made pending an action of tort against the grantor with intent to defeat a recovery, and in such cases the conveyance has been held fraudulent and void. (Jackson v. Myers, 18 Johns., 425 ; Wilcox v. Fitch, 20 id., 472 ; King v. Wilcox, 11 Paige, 589.)
Another important question, involved in the case, relates to the rights of the husband and wife as between themselves. I.t is claimed by the appellant that the facts proved establish an equitable title to the premises in the wife; and that she was the owner of the premises prior to the execution of the deed to her; and that her husband had a mere naked title without any interest *569in the premises; and that when she received the deed the legal and equitable titles were united, and that, therefore, at no time was the same liable for the husband’s debts. The case of Garrity v. Haynes (53 Barb., 596), cited in support of this claim, hardly supports the position taken. In that case the wife purchased a farm and agreed to pay for it $1,600; she paid down, of her own money, $600; by mistake the deed was made to her husband. The balance of the purchase-money was secured by mortgage executed by the husband and wife. The husband never paid any part of the consideration for the farm. The deed bore date March, 1866; and, in November, 1866, the sheriff, by virtue of an execution against the husband, levied upon certain personal property on the farm. After the levy, and before the sale, the wife first learned of the mistake in the deed; and, after levy and oefore sale, the mistake in the deed was rectified .by a conveyance from the husband to a third person, who conveyed to the wife; and these facts were allowed in evidence in an action by the wife against the sheriff for taking her personal property by virtue of the execution. This evidence was allowed, to show her title to the farm and the personalty so levied upon. The case seems to have very little, if any, bearing upon the question involved in this case. Here the wife’s money, to the extent of $150, was paid by the husband on a purchase of a parcel of land conveyed to the husband in 1819; they both negotiated the purchase at the price of $150, and the husband executed back his mortgage to the grantor for $300, the balance of the purchase-money. It nowhere appears that this purchase was made for the wife, and it is of no importance that the premises were declared a homestead as provided by statute.
The premises were occupied and improved by the husband, upon which he built a small house and barn, and paid up the bond and mortgage, his wife living with him, managing and taking care of the family. They occupied the premises until 1856, and then sold the same for $1,100, and thereafter, sales and purchases were made on three several occasions, of other lands, until 1861, when the land described in the complaint was purchased. The conveyances on each occasion of purchase were made to the husband, who made part payment of the purchase-price .from the avails of sales, and *570gave liis bond and mortgage to secure the balance. The only money belonging to the wife, which was ever invested in the land was the said amount of $150. That on one or more occasions the wife claimed she should have title, and the husband promised, on one or more occasions, to have the title vested in her, and she finally received a deed, in August, 1869, which deed was given in pursuance of the promise he had made her. Thus, during a period of about twenty years, Richard N. Johnston and his wife have lived together on four different parcels of land, the purchase-price of the first being $450, of which the separate property of the wife to the amount of $150, was handed by her to the husband to be paid and was paid on said first parcel, and the last parcel, at the end of twenty years, was and is worth $3,000, and this increase in property has resulted from the payment, by the husband, of his bonds and mortgages given by him upon the purchase of several parcels of land, and in buildings and other structures and improvements, from time to time, made by him thereon.
Upon every principle of equity and law, and the adjudication of the courts relating to transactions between husband and wife, the lands in question, as between the husband and wife and between the husband and his creditors, at the time the conveyances were made to place the title in the wife, were legally and equitably his property. It is true, as found by the court, that the wife had an equitable claim against the estate of her husband for her moneys used in the purchase of this property, and that claim had been carefully and equitably provided for in the decree, and she has no reason to complain, or grounds of appeal from the decision ; nor has the husband cause to complain, that twenty years of his labor and services and moneys paid upon the lands he has bought and improved, has been by the decree of the court, charged, first, with the equitable claim of his wife, and second, with the legal claim of a creditor, for wrongs inflicted upon him, and third and last, in protecting the wife in the avails of the balance of the estate, which he voluntarily placed in her hands for her support and maintenance.
Upon the ground that the property in question was conveyed for the purpose of defrauding the plaintiff, and that the same was in part, paid for by the moneys, labor and improvements of the husband, and partly Avith the wife’s funds, the decree separating and *571declaring the interest of the parties in the land, and a conveyance to a receiver, directing a sale and a distribution of the avails on principles of equity, should not be disturbed.
I think the judgment should be affirmed with co’sts.
Mullin, P. J., and Smith, J., concurred.Judgment affirmed with costs.