
    Lizzie Hall, as Administratrix, etc., of Mary Boyle, Deceased, Despondent, v. Julia Bond and Others, Appellants.
    
      Fraudulent conveyance—form of judgment directing a sale by the sheriff—right of redemption therefrom — the fraudulent-grantor cannot testify to statements made to him by the plaintiff’s decedent.
    
    The complaint, in an action brought to set aside a deed as fraudulent and void as to the plaintiff, a judgment creditor of the grantor, demanded judgment that the deed be declared fraudulent and void, and that the plaintiff be permitted to satisfy her judgment, to the extent that it represented money which had been applied by the grantor to the discharge of liens and incumbrances upon the property before the conveyance, from the proceeds of a sale of the property made in the manner provided by law the same as if the fraudulent conveyance had not been made.
    The judgment, after decreeing the invalidity of the conveyance, directed a sale of the property, or so much thereof as might be necessary, by the sheriff of the county, with public notice of the time and place of sale according to law and the practice of the courts in the sale of premises under judgment of foreclosure. It further provided that after the sheriff's deed and delivery of possession to the purchaser “the defendants and ail claiming under them or any or either of them he forever barred of any and all right, title and interest in and to the said premises so sold or any part thereof.”
    
      Held, that the quoted portion of the judgment should not be construed so as to deprive the defendants of all right to redeem, but that such quoted part might be held to refer to a time subsequent to the expiration of the usual time in which a right to redeem from a sheriff’s sale of realty might be exercised.
    "Where it appears that the money applied to- the discharge of liens and incumbrances upon the premises was obtained by the fraudulent grantor from the plaintiff’s decedent, the fraudulent grantor is incompetent, under section 839 of the Code of Civil Procedure, to testify on behalf of the other defendants •who claimed through her as to the instructions given her by the decedent in reference to the use to be made of the money.
    Appeal by the defendants, Julia.Bond'and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 6th day óf April, 1901, upon the decision.of the court rendered after a trial at the Nassau Special Term.
    ' George B. Stocldart and Joseph Steineri, for the appellants.
    
      Toionsend Scudder \_J. Harry Hull with him on the brief], for the respondent.
   Hirschberg, J.:

The evidence was sufficient to establish that the. conveyance of the real estate by the appellant Julia Bond.to the other appellants was with the intent to hinder, delay and defraud the respondent, a judgment creditor. It is undisputed that-the sum of $1,200 of the amount included in the respondent’s judgment was applied by the appellant Julia Bond to the discharge of .liens and incumbrances upon the property before the conveyance; and it clearly appears that there is no other property out of which the respondent can ■satisfy her claim.

The court decreed a sale of so much of the premises as might be necessary to satisfy the respondent’s claim for the money actually used in discharging the incumbrances on the premises, with interest and costs, on the theory that the grantees’ possession and tenure may be regarded in equity as in trust for the respondent to that extent, and the learned counsel for the appellants cites no authority in hostility to this conclusion. He does claim, however, that the judgment is beyond the scope of the prayer of the complaint> and that- the appellants are injuriously affected thereby. The coin-plaint asked that the deed be declared fraudulent and void, and-that the respondent be permitted to satisfy her judgment to the extent of the $1,200 from a,sale of the property in the manner provided by law if the fraudulent' conveyance had not been made, with the usual demand for such other relief as might be just. The judgment, after decreeing the invalidity of the conveyance and the existence of the trust, directs a sale of the property or so much as may be necessary by the sheriff of the county with public notice of the time and place of sale according to law and the practice of the courts in the sale of premises under judgment of foreclosure. The judgment further provides that after the sheriff’s deed and delivery of possession to the purchaser “the defendants and all claiming under them or any or either of them be forever barred of any and -all right, title and interest in and to the said premises so sold or any part thereof.” It is claimed that the effect of this provision is to deprive the appellants of whatever right or equity of redemption may exist, but I do not so understand it. There is no express adjudication barring the right to redeem, if any, and none can or ■should be implied. The learned counsel for the respondent state in their brief that “this part of the judgment may with all propriety be held to refer to a time subsequent to the expiration of the usual time in which a right to redeem from a sheriff’s sale of realty may be exercised.” I think it should be so regarded.

The $1,200 was obtained by the appellant Julia Bond from the respondent’s decedent, and Julia Bond was offered as a witness solely on behalf of the other appellants to testify as to the instructions given her by the deceased in reference to the use to be made of the money. The exclusion of this evidence is assigned as error. Assuming the effect of the proposed evidence to be severable, as suggested, it was still incompetent under section 829 of the Code of Civil Procedure as a conversation and transaction between the deceased and the person through whom the other appellants claim as grantees.

The judgment should be affirmed.

All concurred.

Judgment unanimously affirmed, with costs.  