A large portion of the money used by the defendant David Moral, in the investments which he commenced to make in real estate in 1873, finally resulting in the purchase of the houses and lots in Fifty-first street (the subject of this action) in 1875, came from the sale of furniture in, and a mortgage executed upon, the house and lot 104 Lexington avenue, which house and lot stood in the name of his wife, the defendant Mrs. Jeannette Moral. This house and lot, 104 Lexington avenue, was bought in 1863 by David Moral, with money of his own, and the deed taken in his wife’s name as a return for or repayment to her of certain moneys which she brought to him on their marriage in 1848. At the time he bought the house and lot in her name he was not in debt, and, as a gift even, the transaction cannot be questioned. In 1873, the house was leased and the furniture sold. He collected the rents, amounting to $3,000 a year, for four years and disbursed it. He received $4,000 upon a sale of the furniture (which, he says, was hers, i. e., bought by him for her) and deposited it in the United States Trust Company in his own name. In March, 1873, he bought with that $4,000 real estate in Fifty-seventh street, in conjunction with one Ellert, each investing $4,000. The deed was taken in his name and not in his wife’s. In September, 1873, the property was sold and he realized $5,500 cash from it, of which he deposited $4,600 in his own name in the trust company and afterwards with Greenbaum Bros., bankers. In April, 1874, he took that money, and, with $800 more, bought in his own name three mortgages on three houses and lots in Fifty-first street. In August, 1875, prior mortgages on those houses and lots were foreclosed and he bought them in in his own name. In order to raise more money to effect the purchase, his wife and he executed a mortgage for $4,500 on the Lexington avenue property, of which he used $2,493 in securing the Fifty-first street property. In October, 1875, he sold one of the houses and lots in Fifty-first street for $10,750, realizing $3,602.91 cash, of which he used $2,000 to
In June, 1876, when he was apprehensive of the recovery against him by Salomon, the plaintiff, of a judgment in an action then on trial, he conveyed the remaining two houses and lots in Fifty-first street to his son for the nominal consideration of $1,500, but without actual consideration, *and the son immediately conveyed them to the defendant Jeannette Moral, his mother, the wife of David Moral, without actual consideration but for the same nominal consideration of $1,500.
This action is brought to have these last-mentioned conveyances set aside and declared fraudulent and void as against this plaintiff and other creditors of David Moral who may join in the action.
So far as the evidence enables me to trace the sources of the moneys invested by David Moral in these two houses and lots in Fifty-first street, it would seem that $6,493 of it came from the sale or mortgaging of property to which Mrs. Moral had a good title, that is, $4,000 invested by David in the Fifty-seventh street property in 1873 was the proceeds of the sale of his wife’s furniture, and $2,493 used by him to secure the three houses and lots on Fifty-first street upon the foreclosure in 1875 was part of the proceeds of a mortgage given at that time on his wife’s house in Lexington avenue. But, of this $6,493, $2,000 has been paid back to her, because, when one of the Fifty-first street houses was sold to Arnold in 1875, David Moral received $3,602.91 cash and used $2,000 of it to reduce the mortgage, to which I have just referred, given a short time before on his wife’s house in Lexington avenue. Hone of the moneys collected by David Moral as rent of his wife’s house, and no other proceeds of any property belonging to her, are traced into the purchase-money of the two houses and lots on Fifty-first street, the subject of this action, and her interest therein, if she be entitled to any,
It is claimed by defendants that in using his wife’s money to purchase the Fifty-seventh street property, in selling that and investing in the bonds and mortgages on Fifty-first street, in buying the latter property upon foreclosure and in receiving, depositing and disbursing the moneys received and paid out during these successive investments, the defendant David Moral was acting as agent of his wife, and that the titles, though taken in his name, were hers, she being ignorant of his acts in that particular.
This claim of agency rests upon no stronger foundation than the oath of Mr. and Mrs. Moral, and contradicts all the records and their own written and solemn declarations during the periods from. 1871 to the day of trial. That oath is made at a time when it is of the greatest importance to them to make the claim, while the declarations I have mentioned were made at a time when there was no temptation to falsify on this important point. David Moral deposited and drew out these moneys from 1871 to 1876, in his own name, and took and gave every deed in his own name,, his wife joining in such deeds and releasing her dower. In a mortgage executed by them on this property on Fifty-first street and on the Lexington avenue property in 1875, to secure certain indebtedness of the firm of Salomon & Moral, of which their son was a member, Mrs. Moral covenants to charge her separate property, and expressly designatés the Lexington avenue property as her separate estate.
In a written declaration, made in the same matter at about the same time, David Moral, to show his solvency, declares himself to be worth $25,000 exclusive of the real estate which I (he) own in Fifty-first street and Lexington avenue. Defendants now declare that all the investments made were so made after consultation between them, and Mrs. Moral approved or directed them all, her husband acting according to her instructions, but that she was wholly unaware that he had taken
The whole evidence establishes in my mind that Mrs. Moral intrusted her husband with whatever money he got out of the Lexington avenue house and furniture to use as his own, and that at most he became her debtor only for the amount. This view is consistent with their financial dealings since their marriage. She brought him a dowry of $5,000 in 1848, which he used as his own in business. In 1863, he repays it by buying the Lexington avenue property in her name; in 1871, he concludes to speculate with the proceeds of the furniture, and with that and other funds of his own comes on an active and successful business as real estate agent, until it results in his ownership of the property now in question. The prospect of a heavy judgment against him induces the pretense that this property is not, in fact, his own, and that he has been acting all along as the agent of his wife. I cannot but believe this to be an after-thought, and that the conveyances to his wife were made to hinder, delay and defraud his creditors, and that Mrs. Moral had notice of his intention. But there is no evidence that Mrs. Moral intended any of her moneys used by her husband as a gift, nor other than a loan, and in declaring the conveyances void as against his creditors, it is equitable to declare a lien upon the premises in her favor to the extent of the sum of $4,328.66 of her money, with which the premises were purchased, and interest from June,
Judgment accordingly.
This cause having been tried before me, I make and file the following findings of fact:
I. That, on the 26th day of July, 1876, the plaintiff recovered a judgment in this court against the defendant, David Moral, for the sum of $3,878.68, which said judgment was on said day duly docketed in the office of the clerk of the city and county of Bew York.
II. That, on the 21st day of August, 1876, an execution was issued upon said judgment to the sheriff of the city and county of Bew York, where said defendant then resided, and that the said execution has been returned wholly unsatisfied.
III. That the said judgment remains wholly unpaid.
IV. That, on the 22d day of June, 1876, the defendant, David Moral, being the owner of the real estate hereinafter described by deeds bearing date on that day, and recorded in the office of the register of the city and county of Bew York, in liber 1,372 of conveyances, pages 257 and 260, on the 27th day of June, 1876, conveyed to one Bernhard Moral, his son, the following described premises, viz.:
All those two certain lots, pieces or parcels of land, with the buildings and improvements thereon erected, situate, lying and being in the city of Bew York¡ taken together bounded and described as follows : Beginning at a point on the northerly side of Fifty-first street distant two huhdred and thirty-five feet eight inches easterly from the north-easterly corner of Fifty-first street and First avenue, running thence northerly parallel with First avenue and partly through the center of a party-wall one hundred feet five inches ; thence easterly and parallel with Fifty-first street thirty-three feet four inches; thence southerly parallel with First avenue one hundred feet
V. That th'e said Bernhard Moral, by deeds bearing date June 26, 1876, and recorded in said register’s office in liber 1382 of conveyances, pages 374 and '376, on the 29th day of June, 1876, conveyed the same premises to his mother, the defendant Jeannette Moral, the wife of the defendant David Moral.
YI. That, said conveyances were made without any consideration, although each of said deeds purported to have been made for the consideration of the sum of $1,500.
VII. That, at the time of the making of said conveyances, the said David Moral was wholly insolvent, and that said conveyances were made with intent to prevent the judgment recovered by the plaintiff against the defendant David Moral from-becoming a lien upon the property thereby conveyed, and with intent, on the part of David Moral, to hinder, delay and defraud his creditors, and that the defendant Jeannette Moral had notice of such intention at the time.
VIII. That, at the time of the making of said conveyances, the defendant David Moral was indebted to the defendant Jeannette Moral, his wife, in the sum of $4,328.66 for moneys previously loaned by her to him. And I find as conclusions of law:
I. - That the aforesaid transfers and conveyances by said David Moral to said Bernhard Moral, and by said Bernhard Moral to said Jeannette Moral, were, and each of them are, fraudulent and void as to the creditors of the said David Moral then existing, and especially as to the plaintiff and his judgment aforesaid, and should be deemed fraudulent and void as against the said judgment.
II. That said judgment became and was a valid lien on the real property so transferred as aforesaid, situated in the city and county of Hew York, and such real estate was liable to
Ill That the plaintiff is entitled to judgment decreeing the said real estate to be sold, and that out of the proceeds of such sale, after deducting the expenses thereof, the plaintiff be paid the costs of this action hereby awarded to him, and also the amount of his judgment against the defendant David Moral, with interest thereon, or so much thereof as the purchase-money of said premises will pay of the same, and that the surplus, if any, be paid to the defendant Jeannette Moral.
J. F. DALY,
J.C.C.P.
The cases cited upon the settlement of findings show clearly that Mrs. Moral, having notice of the fraudulent intent of hqg husband in conveying, the premises to her, and being, therefore, a party to the fraud, although her husband was actually indebted to her at the time, is not entitled to a lien on the premises conveyed for the amount of such debt.
• J. F. D., J.
Richard S. Newcombe, for defendant, appellant. The learned judge erred in finding that the property in question was not, in equity, the property of Jeannette, bought with her money, and the title taken in her husband’s name, without her assent. There was no evidence contradicting the evidence of the defendants in this regard, and it not being intrinsically improbable, the court could not disregard it. The evidence, therefore, being all one way, the finding of tlie learned judge was clearly wrong. Upon the evidence, and the finding as the defendant Jeannette Moral insists it should be, the law is well settled (Holden agt. Burnham, 5 Supreme Ct. R., 195; Safford agt. Hynes, 39 Barb., 625; Brown agt. Cherry, 57 N. Y., 645; Lomisbury agt. Purdy, 18 id., 515; Ryan agt. Dox, 34 id., 307; Sanford agt. Noris, 4 Abb. Ct. Apps., 144). The paper introduced at folio 136, is no proof
Blumenstiel & Ascher, for plaintiff, respondent. Exceptions to conclusions of law, where the cause is tried-by the court without a jury, are indispensable to raise any question for review (Enos agt. Englehardt, 32 N. Y., 444; Weed agt. N. Y. and Harlem R. R. Co., 29 id., 616; Russel agt. Duflon, 4 Lans., 399; Walsh agt. Washington Marine Ins. Co., 32 id., 427; Renauld agt. Peck, 2 Hilt., 137; Elwell agt. Dodge, 33 Barb., 336 ; Valton agt. National Fund Life Ins. Co., 20 N. Y., 32; Newlin agt. Lyon, 49 id., 661; Brewer
Although a review of both the law and the facts of a case tried by a judge or referee may be had at general term, yet if no error be shown, the findings of fact like the verdict of a jury should be deemed conclusive. Otherwise, a retrial of the cause would necessarily occur on the argument of the appeal.
Mrs. Moral, the grantee, had notice (says the court) of her husband’s fraudulent intent and this may be inferred from all the circumstances of the case (Babcock agt. Eckler, 24 N. Y., 623; Bigelow agt. Zimmerman, 7 Wend., 436; Bennett agt. McGuire, 58 Barb., 625).
Even without her privity the conveyance if voluntary would be fraudulent as against creditors (Mohawk Bank agt. Atwater, 2 Paige, 54).
After a review of all the evidence, I am for affirming the judgment.
Robinson and C. P. Daly, JJ., concurred.