Tappan v. Butler

holder, and the question was the same as it would have been had the holder in person, with all the information and means of knowledge he possessed, given the notice.

The authorities referred to seem to us to establish conclusively, and without any conflict of opinion, the sufficiency of the notice given in this case, to charge the defendant as indorser; and, as there is no exception relied upon but that which raised the question we have considered, we have no alternative but to affirm the judgment. The decision of the referee was not erroneous.

Judgment affirmed, with costs.

CHARLES B. TAPPAN, Plaintiff and Respondent v. HARRIET E. BUTLER, Defendant and Appellant.

1. The facts, that real estate was conveyed to a married woman, October 10, 1849, and that the consideration therefor was paid by the husband, that a judgment was recovered against the husband, May 27, 1847, for $144.84, and that in October, 1851, another judgment for $514.51 was recovered against the husband for a debt contracted in 1847, do not, of themselves and alone, justify the conclusion that such conveyance is void as against a person becoming a creditor of the husband in February, 1859.

2. By Statute, (§ 4 of title 3, chap. 7, part 2, R. S.,) the question of fraudalent intent, in all cases arising under it, is one of fact and not of law, and no conveyance shall be adjudged fraudulent as against creditors, solely on the ground that it was not founded on a valuable consideration. 8. By sections 51 and 52 (1 R. S. 728), it is declared that, where a grant is made to one person for a valuable consideration paid by another, the title shall vest in the person named as alienee in the deed, subject only to the qualification that the deed shall be presumed fraudulent as against those who are at that time creditors of the person paying the consideration, and if a fraudulent intent be not disproved, a trust shall result in favor of such creditors, "to the extent that may be necessary to satisfy their just demands."

4. When, in addition to proof that the husband paid the consideration for the deed, and was at the time indebted, other facts are proved for the purpose of showing that the conveyance was procured and consideration paid with an actual intent to defraud-as that improvements were subsequently made on the premises, and the payments therefor were made by the husband, it is error to exclude proof that such improvements were paid for by moneys raised by mortgaging the property, and that the wife delivered the moneys to the husband to be so paid and applied by him, on her account and as her agent.

Tappan v. Butler.

5. The fact that the husband executed such mortgage with the wife, does not estop her from giving such evidence.

6. The Statutes, in relation to the property of married women, passed in 1848 and 1849, are not material to such a case. They do not affect the question, whether the deed to the wife was, or was not fraudulent.

7. Where the wife is admitted as a witness in her own behalf against the objection of the plaintiff that she is an incompetent witness, and is permitted to testify, and evidence of material facts offered to be given by her is excluded on the ground that it is immaterial, a judgment against her will be reversed.

8. In such a case, the question whether she was a competent witness will not be considered; but, for all the purposes of the appeal, the decision admitting her as competent, will be treated as correct.

(Before BosWORTH, Ch. J., and WOODRUFF and WHITE, J. J.)

Heard November 8, decided December 29, 1860.

APPEAL by Harriet E. Butler from a judgment in an action in which she and her husband, Thomas Butler, are defendants, and Charles B. Tappan is plaintiff.

The action was brought in June, 1859, for the purpose of charging certain lots of ground which were conveyed, October 10, 1849, by George S. Howland and wife to Harriet E. Butler, wife of Thomas Butler, and upon which buildings were subsequently erected, with the payment of a certain judgment for $563.65 recovered February 21, 1859, by one Ostrander against Thomas Butler, the husband, and assigned to the plaintiff, and for the appointment of a receiver to collect the rents and profits thereof, upon the ground that the lots were purchased with the money of the husband, and the improvements erected thereon were paid for by him, and the whole was in truth his property, but conveyed to and held by her fraudulently and with intent to defraud the creditors of the husband.

It is not necessary to state the pleadings, further than to say that the answer of the wife was sufficient to raise the whole question whether the plaintiff was entitled to have payment of the judgment out of the property.

The action was tried before Mr. Justice HOFFMAN, at special term, on the 20th day of March, 1860, and he decided, and by the judgment he adjudged, that the conveyance of the lots of land and premises procured by Thomas Butler to be made to the appellant, Harriet, and VOL. VII.

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Tappan v. Butler.

paid for and improved by the said Thomas, is a voluntary conveyance, procured by him to hinder, delay and defraud his creditors, and is void as against his creditors, and as against the plaintiff as assignee of a judgment against him; and that a receiver be appointed, and that such receiver take possession of the real estate and buildings thereon, and of the rents, issues and profits, and that the tenants attorn to him; and that out of such rents, &c., he pay the judgment to the plaintiff.

On the trial, proof was given to show, and the judge found, in substance, the following facts, viz:

On the 27th of May, 1847, George W. Niles recovered a judgment against the husband, Thomas Butler, for $141.84, on which an execution was issued and returned unsatisfied.

In 1848 and 1849, the said Thomas Butler lent and advanced $3,000, or upwards, upon notes of George S. Howland, which were not paid at maturity, and, on the 10th of October, 1849, he consented to accept in payment of the notes a conveyance, which he directed to be made to Harriet, his wife, and which Howland and wife executed to her, conveying three lots of ground in the city of New York, now in question.

On the 11th day of October, 1851, Benjamin P. Jones also recovered a judgment for $514.51 against the said Thomas Butler, for a debt contracted by him in 1847, on which an execution was issued and returned unsatisfied.

In the year 1849, and onward through the years 1853 and 1854, buildings were erected upon the said lots, and the judge found as facts that they were erected by Thomas Butler; that all the purchases of materials, the employment of workmen, and the superintendence of the work and the payments, were made by him, and that he contracted debts for materials which still remain unpaid.

That when he procured the conveyance to be made, and up to the time when the judgment held by the plaintiff was recovered, he was indebted and continued indebted and contracting debts, and that he has always used and

Tappan v. Butler.

managed the property as his own, without interference or assertion of right on the part of his wife.

Thereafter, on the 21st day of February, 1859, one Ostrander recovered a judgment against Thomas Butler for $563.65, upon which the execution was returned unsatisfied, and which was assigned to the plaintiff, and is the foundation of this action.

And the judge held that the consideration of the conveyance came from Thomas Butler, and the improvements were made by him, that it was a voluntary conveyance to his wife, that it was fraudulent and done with intent to hinder, delay and defraud creditors.

That the wife could not hold the property by virtue of the act of April 11th, 1849, but that Thomas Butler "must take his interest in it as tenant by the curtesy, and the same is subject to the satisfaction of the plaintiff's claim."

On the trial, the indebtedness of Howland to Thomas Butler, and the conveyance of the lots to his wife upon that consideration and by his direction, were proved without contradiction. The plaintiff then called witnesses, and proved by one that he sold lumber to Thomas Butler in 1853, and was paid by him therefor about $600, though Mrs. Butler, he said, may have paid him some of the money; that the lumber was used on the premises; by another, that he, in 1853, flagged the street at the premises, and was employed and paid by Thomas Butler a little over $300; by another, that he did the brick work in 1853, amounting to about $400, and was employed and paid a part of the amount by Thomas Butler, and his claim to the residue he had sold; by another, that he did a small amount of carpenter's work on the premises in 1853 or 1854, under a contract made with Thomas Butler, and Butler paid him; and by still another, that he is a stone cutter, and worked on the premises in 1854, and onwards for two or three years, employed and in part paid by him, but about $300 is still unpaid; he has received Butler's notes for the amount. The proof tended to show that Butler superintended the

Tappan v. Butler.

work, but also that Mrs. Butler was there, and that she resided on the premises as early as 1854.

On the part of the defendant, it was admitted that there were two mortgages on the premises, both executed by Butler and his wife, one made in 1849 for $2,500, and one made in 1853 for $1,500.

The defendant's counsel then called as a witness, on her own behalf, Harriet E. Butler, the defendant.

The plaintiff objected to the defendant, Harriet E. Butler, being examined as a witness on her own behalf, as she is the wife of Thomas Butler, a co-defendant in the action. The objection was overruled by the court, and the plaintiff duly excepted to such ruling.

The defendant, Harriet E. Butler, was then sworn as a witness in her behalf, and testified thus:

"Thomas Butler and myself united in two mortgages, one in 1849 for $2,500, the other in 1853 for $1,500, on this property. The moneys so raised were paid to Mr. Butler."

The defendant then offered to prove that these moneys were applied to the payment of the constructions in evidence, which testimony being objected to by the plaintiff as immaterial, the court refused to admit it, and thereupon the defendant's counsel excepted.

Question. To what were these moneys applied?

Objected to; objection sustained; exception taken. From the judgment entered as above stated, the defendant, Harriet E. Butler, appealed to the general term.

C. A. Nichols, for Appellant.

F. H. B. Bryan, for Respondent.

BY THE COURT. WOODRUFF, J.-The rights of the credtors of Thomas Butler, to obtain payment out of the property described in the complaint herein, may perhaps depend upon the time when their debts were contracted. At all events, it may be material to consider the title of the defendant, his wife, in two aspects.