
    MORRIS v. MORRIS et al.
    (Supreme Court, General Term, Second Department.
    July 28, 1893.)
    1. Fraudulent Conveyance—What Constitutes. '
    In an action to set aside a deed as in fraud of creditors, it appeared that after a suit had been brought by plaintiff against his debtor, one ■ of- defendants, the latter was told that it was “best to put everything out of his hands,” to which he replied that he supposed “it would be a good thing,” and that thereupon he made a deed to his mother-in-law, who was present at such conversation. The nominal consideration for the deed was land in Kansas, which the debtor had never seen, and worth $1,000, while his equity in the farm conveyed by him was worth $3,500. A month later, plaintiff recovered judgment in his suit. Meld, that the deed was fraudulent and void as against plaintiff.
    2. Same—Judgment.
    It is proper, in setting aside a transfer in favor of a plaintiff, who has in her hands personal property of the debtor, to apply the value of such property on her debt.
    Appeal from circuit court, Rockland county.
    Action by Julia Morris against John Morris, S. Marie Morris, and Marie S. Crowe to set aside a deed. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    _ Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
    Snider & Hopper, for appellants.
    Arthur S. Tompkins, for respondent.
   BARNARD, P. J.

The plaintiff is a judgment creditor of John Morris. The judgment was recovered on the 6th of October, 1890. On the 20th of September, 1890, the judgment debtor conveyed a farm of land of about 51 acres to the defendant Marie S. Crowe, by deed, in which his wife joined. The .plaintiff’s execution was returned unsatisfied, and this action is brought to set aside this deed as fraudulent. The defendants aver that there was sufficient personal property to pay the execution issued by plaintiff, and that the sale was made in good faith by the debtor of the farm, and for an adequate consideration. The trial court found the deed to have been fraudulently given and taken. The evidence sustains the finding. The plaintiff had brought her action to recover the judgment which she did obtain, and, in September previous, the debt- or was told that it was best “to put everything out of his hands,” to which he replied that “he supposed it would be a good thing.” This was in the presence of the grantee, Marie S¡ Crowe. Mrs. Crowe was the mother-in-law of the debtor, and lived with him and his wife. ¡No money was paid for the deed. The pretended consideration was 80 acres of land in Kansas. The debtor hajl never seen the land there, and it was worth $1,000. This, if true, would make out no adequate consideration for the farm worth $5,000, with a mortgage on it of $1,500 only. The case is a clear one where a debtor interposed a title between his property and his creditor, to hinder, delay, and defraud the creditor. After the recovery of the judgment by plaintiff, she became possessed of certain articles of personal property belonging to the debtor. The proof is not very clear what this property was, nor what was its value. It was proven by plaintiff not to have been worth $25, by one witness, and the plaintiff testified that it was not worth $10. The trial judge found the value to be $75, and deducted it from the judgment debt. The debtor has no cause, from this finding and under this proof, sufficient to reverse the judgment as to the deed. The proof of a conversation between the defendant and the sheriff was properly rejected. The sheriff was not a party to the action, and was in no respect the plaintiff’s agent, because he had in his hands an execution on her farm against the judgment debtor.

The inquiry as to the value of this personal property was necessary to determine what was equitable between the parties. It would have been inequitable to set aside the transfer in favor of a plaintiff, who had in her hands personal property of the debtor, without applying the value of the same upon her debt. The judgment should be affirmed, with costs. All concur.  