
    Osander Bishop, Appl’t, v. Caleb V. Stebbins et al., Resp’ts.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed July, 1886.)
    
    1. Debtor and creditor—Debtor mat pat his debts bt transfer of his _ PROPERTY
    In an action brought by a judgment-creditor to set aside a transfer of real and personal estate on the ground that they were fraudulent and void as to creditors of the judgment-debtor. Held, that it was lawful for a debtor t© pay his debts by a transfer of his property.
    3. Action to set aside transfer as fraudulent—Debtor may prefer ONE CREDITOR OVER ANOTHER IN MAKING PAYMENT.
    
      Held,, that a debtor has a right to prefer one or more of his creditors over the others, and so long as he exercises this right honestly and in good faith, his acts, whether the preferences be created by sale or pledge are unimpeachable.
    3. Same—Evidence of fraud in transfer—What is not conclusive.
    
      Held, that the fact that the transfers covered substantially all the property of the debtor was not conclusive evidence of false intent..
    4. Same—To attack transfers successfully fraud must be shown in purchaser.
    
      Held, that to successfully attack the transfers it was incumbent on the plaintiff to show a fraudulent intent on the part of the purchaser.
    
      11. Ij. Bronson, for app’lfc; B. H. Buell, for resp’t.
   Hardin, P. J.

Findings of fact have been made upon evidence warranting the conclusions stated, to the effect that the transfers and conveyances were made for the purpose of paying just debts due to Andrew Stebbins for services rendered and personal property sold, and for assuming the mortgage to Jewett and the debt to Chittenden, and the liability by reason of the provision in Titus Stebbins’ will to support Warren Stebbins, and that the transfers were made without any fraud or fraudulent intent.

We are of the opinion that all the conclusions of fact in that regard were well supported by the evidence given upon the trial. The rule is that the determination of a question of fact will not be disturbed, on appeal, where there is no decided preponderance of evidence against the view adopted by the trial court. Hoffman v. De Graaf, 23 Weekly Dig., 394. It was lawful for the debtor to pay his debts by a transfer of his property. Stacy v. Deshaw, 7 Hun, 449.

A debtor has a right to prefer one or more of his creditors over the others, and so long as he exercises this right honestly and in good faith, his acts, whether the preference be created by sale or a pledge, are unimpeachable. Board of Chosen Freeholders of the County of Essex v. Lindsley, 5 East. Rep., 117. The fact that the transfers covered substantially all the property of the debtor was not conclusive evidence of a fraudulent intent. It was a circumstance, among others, to be weighed in determining the intents and purposes of the parties. Remington Paper Company v. O’Dougherty, 36 Hun, 79; Hale v. Stewart, 7 id., 591. The plaintiff assumed the burden of establishing fraudulent intent on the part of Andrew Stebbins the purchaser. Remington v. O’Dougherty, supra; Woodworth v. Sweet, 51 N. Y., 8; Dudley v. Scranton, 57 id., 424.

To successfully attack the transfers it was incumbent upon the plaintiff to show a fraudulent intent on the part of the purchaser of the property. Remington v. O’Dougherty, supra; Parker v. Conner, 93 N. Y., 118.

Titus Stebbins, in 1844, made a will appointing his son, Caleb V. Stebbins, his executor, and m the will certain pecuniary legacies were given to parties named, and the executor was ordered and directed to maintain the testator’s son, Warren Stebbins, in the language embraced in the following statement of facts, and following that language the following provision, viz.: “I give and bequeath unto my son, Caleb V. Stebbins, all the remainder of my real and personal property.” Under the will Caleb took the farm owned by his father, at the time of his death, consisting of about 127 acres, and immediately took upon himself and assumed the care and maintenance of Warren down to December 21, 1881. Caleb supposed by taking the farm that he assumed the maintenance of Warren. We think the burden was accepted by Caleb and rested upon him at the time of the sale in 1881 to the defendant Andrew. Scott v. Stebbins, 91 N. Y., 606; Brown v. Knapp, 79 id., 136; McCorn v. McCorn, 100 id., 511; Bushnell v. Carpenter, 28 Hun, 19. When Caleb sold the farm he supposed, and as we think correctly (Bushnell v. Carpenter, 28 Hun, 19; S. C., affirmed, 92 N. Y., 270), that the burden rested upon the farm and upon him, and he took care to have that obligation assumed by Andrew, and allowed and paid $1,000 for such assumption of his liability by Andrew, and to secure the performance of the obligation took the bond of .Andrew conditioned to discharge such liability and to indemnify him against it.

We think the sum was reasonable, and that no fraud or fraudulent intent was evinced by the arrangement. Warren was advanced in years, irritable and untidy in his habits, and required unusual care, support, maintenance and management. His expectancy of life was about four and one-half years by the Northampton tables. He lived some eighty-one- weeks after the obligation given by Andrew, and was properly cared for, such care requiring valuable services and considerable expenditures.

We are satisfied with the view the trial judge took of that branch of the case. Morgan v. Potter (17 Hun, 403) does not aid the appellant. There it appeared the transfer was voluntary, no valid consideration upheld it, and that there was a fraudulent intent. Pond v. Comstock (20 Hun, 492) was unlike this case. There the conveyance was made with a fraudulent intent on the part of the grantor. The same is true of Union National Bank v. Warner (12 Hun, 306). Here the vendor sold his property for an adequate consideration, and in good faith. Though he had no other property, the sale is not for that reason to be held fraudulent. Hale v. Stewart, 7 Hun, 591; Remington v. O’Dougherty, supra; Parker v. Conner, supra.

That a debtor may prefer a creditor has been repeatedly held, or may pay a bona fide creditor even when insolvent, and even if it require the sale or transfer of all his property to satisfy an honest debt or liability. Remington v. O’Dougherty, supra; Auburn Exchange Bank v. Fitch, 48 Barb., 344. The evidence given upon the trial presented a question of fact as to the note of $331. The facts appear from interested witnesses. Some of the evidence was vague and contradictory. We cannot say that the finding in regard to the note is not supported by sufficient evidence properly interpreted. The credence to be given to the witnesses speaking in regard to it was considered and passed upon, and according to settled .authority we ought not to disturb the result. Michigan Carbon Works v. Schad, 38 Hun, 71.

Andrew Stebbins bought the property in good faith, in December, 1881, for a full and fair consideration, with no knowledge of or participation in any fraud, and he acquired by such purchase a good title, and bis rights and equities in it (except as allowed by the trial court), are superior to those oi the plaintiff. Starin v. Kelly, 88 N. Y., 418; Zoeller v. Riley, 100 id., 108.

After weighing all the evidence and considering all the circumstances disclosed at the trial, we are of the opinion that the trial judge reached the proper conclusions of fact, and that those conclusions accord with the preponderance of the evidence, and that his decision upon the facts and law of the case should stand.

The judgment should be affirmed, with costs against appellant.

Boabdman and Follett, JJ. concur.  