
    Loretta McConnell, App’lt, v. George F. Barber et al. Resp’ts.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed May 4, 1895.)
    
    1. Appeal — Conflicting evidence.
    The decision of the trial court, on conflicting evidence, will not be disturbed on appeal, unless it is against the weight of evidence, or the proof so clearly preponderates in favor of a contrary result that it can be said with reasonable certainty that the trial court erred in its conclusions.
    3. Fraudulent conveyance — Consideration barred.
    In an action to set aside a conveyance as fraudulent, the fact that the consideration for the deed was an indebtedness barred by the statute of limitations, which had been standing for many years without the payment of any interest thereon, is a circumstance to be considered by the trial court, but is not controlling, in determining the question of good faith.
    3. Same — Compound interest.
    That compound interest forms part of tlie consideration, does not render the deed void as to creditors, in the absence of any agreement for its payment.
    Appeal from a judgment dismissing the complaint.
    
      B. T. Wright, for app’lt; E. D. Crosley and T. E. Courtney, for resp’ts.
   Martin, J.

This was an action in the nature of a creditors’ bill. Its purpose was to set aside a deed given by George F. Barber to the defendant Marcellie I. Barber. The defendants were husband and wife. The special term found that the deed was made in good faith, without any intent to hinder, delay, or defraud the creditors of George F. Barber, the judgment debtor; that it was based upon a good and sufficient consideration; held that the conveyance in question was valid; and directed a judgment accordingly with costs. The appellant contends that the findings of the trial court were against the weight of evidence, and should not be upheld. A thorough and careful examination of the evidence discloses that the question of the intent with which the conveyance under consideration was made was one of fact to be determined by the trial court. While there were circumstances which, unexplained, might have justified the court in inferring that the transfer was fraudulent, yet, if the court gave credit to the evidence of the defendants and their witnesses, it was sufficient, we think, to justify the decision of the trial court. Where a review of the facts by an appellate tribunal is proper, it is under no obligations to arbitrarily adopt the conclusions of the trial court. Yet great consideration will be accorded to its opinions, especially where 'there is evidence on both sides, and the mind of the court has been called upon to weigh conflicting statements and inferences, and to decide upon the credibility of opposing witnesses. In reviewing the determination of a trial court in such a case, the appellate court is not warranted in reversing upon the sole ground that in its opinion the trial court should have reached a different conclusion. To justify such a course, it should appear that the findings of the trial court were against the weight of evidence, or the proof so clearly preponderated in favor of a contrary result that it can be said with reasonable certainty that the trial court erred in its conclusion. Westerlo v. De Witt, 36 N. Y. 340; Crane v. Baudousine, 55 id. 256; Sherwood v. Hauser, 94 id. 626; Baird v. Mayor, etc., of City of New York, 96 N. Y. 567; Lowery v. Erskine, 113 id. 52; 21 St. Rep. 917; Devlin v. Bank, 125 N. Y. 756; 35 St. Rep. 922; Barnard v. Gantz, 140 N. Y. 249; 55 St. Rep. 541. Applying the doctrine of these authorities to this case, we think the findings of the special term should not be disturbed.

The fact that the indebtedness to the wife of the judgment debtor, which was the consideration for this transfer, was barred by the statute of limitations, and had been standing twenty-seven or twenty-eight years without the payment of any interest thereon, was a circumstance to be considered by the trial court in deterrning the question of good faith; but it was not controlling, as the statute of limitations might' be waived and the transfer be valid as to creditors. Bump, Fraud. Oonv. 220.

The appellant also insists that, as the consideration for this transfer consisted to a great extent of compound interest, in was invalid. In Stewart v. Petree, 55 N. Y. 621, 623, Allen, J„ said:

“ But a prospective agreement, after the interest has accrued, to pay interest thereon, is valid, and money paid for compound interest cannot be recovered back. So, too, a security for interest upon interest, given after it has accumulated, and in the absence of any prior undertaking to pay it, is valid, and supported by a good consideration.”

At its last term, in a case in which no opinion was written, this court held that a note, payable in future, given for compound interest, was valid, and could be enforced. Following the doctrine of these authorities leads to the conclusion that, if the transaction between the defendants was free from actual fraud or fraudulent intent, the consideration was sufficient to uphold the conveyance in question. Although it must be admitted that if the consideration for this transfer was fictitious, and consequently fraudulent, and such fraud was participated in by both"parties, it would be void, yet, as in this case the court has, upon sufficient evidence, found that the consideration was not fictitious, or the transfer fraudulent, that principal has no application.

We are of the opinion that the evidence was sufficient to sustain the findings of the trial court, and the judgment should be affirmed.

Judgment affirmed, with costs.

All concur.  