
    (89 Hun, 598.)
    MILWAUKEE HARVESTER CO. v. CULVER et ux.
    (Supreme Court, General Term, Fifth Department.
    October 16, 1895.)
    Fraudulent Conveyances—Purchase by Husband in Name or Wipe.
    In an action to set aside a deed on the ground that the purchase money was furnished by the debtor, and the conveyance made to nis wife, for the purpose of defrauding his creditors, it appeared that a tract of land had been conveyed to the wife, who, in turn, conveyed it to a homestead association then organized, and of which her husband was secretary. The transaction was a speculative enterprise, and there was evidence that the debtor had intended to carry it on in his own name, but was advised to have it in his wife’s name. Money raised by mortgaging such land was used to pay for other real estate purchased in the name of the wife, the deed of which plaintiff sues to set aside. Held, that it was a question of fact whether such transactions were solely with a view to the creation of a separate estate of the wife, and without any intent to defraud her husband’s creditors.
    Appeal from special term, Monroe county.
    Action by the Milwaukee Harvester Company against John C. Culver and Clara D. Culver to procure an adjudication that a conveyance to defendant Clara D. Culver was made with intent to binder, delay, and defraud the creditors of her husband, John C. Culver. There was a judgment in favor of plaintiff, and defendants appeal. Affirmed.
    Argued before LEWIS, BRADLEY, WARD, and DAVY, JJ.
    Charles A. Widener, for appellants.
    Arthur Warren, for respondent.
   BRADLEY, J.

The plaintiff, a judgment creditor of the defendant John C. Culver, charges that the conveyance of the title to certain premises on Monroe avenue, in the city of Rochester, was procured to be made to the defendant Clara D. Culver, and was taken by her in fraud of the creditors of the defendant John 0. Culver, her husband. The conveyance was made by Wilson Soule to her in May, 1890. The consideration was $5,400, of which the sum of $1,400 has been paid. The trial court found as facts that the sum of $900 of that amount was paid by the defendant Clara D. Culver; and that the additional sum of $500 was paid by John C. Culver out of moneys belonging to him; that the money was so paid by him with intent to defraud his • creditors; and that the deed was taken in the name of his wife as a device on the part of the defendants for the like purpose. The conclusion of the court followed: That the defendant Clara had an equitable lien on the premises to the extent of such payment made by her; and that unless the amount of the plaintiff’s judgment, with costs, should be paid, the premises be sold subject to such lien and to that of the unpaid purchase money; and that the proceeds of the sale be applied to the payment of the plaintiff’s judgment and costs. In 1887, when the defendants came from Illinois to Rochester, the indebtedness of John C. Culver amounted to from $1,000 to $1,500. In November, 1889, a tract of land known as the “South Park Homestead Tract” was conveyed to the defendant Clara D. Culver, for the consideration of $13,000, expressed in the deed. Thereupon the South Park Homestead Association was organized, and the defendant John C. Culver became its secretary. Mrs. Culver conveyed the tract to the association in December, 1889, for the consideration, as expressed in the deed, of $37,800, and took from the association a mortgage to secure the payment of $27,800 of the purchase money, the residue being the amount of a prior mortgage on the tract. The evidence tends to prove that the $500 before referred to as paid on the purchase money of the Monroe avenue property was derived from the moneys secured by the mortgage of the homestead association.

The question, therefore, is whether the conclusion was warranted that the money derived from that source might, as to his creditors, be treated as, and was, that of the defendant John C. Culver. He was the promoter of the purchase, although the option for it was taken by his brother J. Z. Culver. The purchase with the organization of the association was a speculative enterprise. It was understood that John C. Culver should give his attention to the management of the business, and he did so. Assuming that the purchase was made by the wife, and that the business was hers in good faith, as against the creditors of John C. Culver, the fact that he undertook to and did give his time and service to her business, and thus for the benefit of his wife relating to her separate estate, would not prejudice her right to the property and its proceeds as against his creditors, or subject it or the proceeds to the appropriation by them to the payment of his debts. Abbey v. Deyo, 44 N. Y. 343; Coddington v. Bowen (Sup.) 6 N. Y. Supp. 355. But, if the wife was made the depository of the title to the property, as a device to enable the husband to carry on his business under such cover to avoid the claims of his creditors, and with intent to defeat the collection by them of the debts against him, the property and the proceeds of the business so conducted by him might, as to his creditors, be treated as his, for the purposes of remedy in their behalf.

At the time of the purchase of the South Park tract, the wife had no separate estate other than the $900 put into the Monroe avenue property; nor did she personally take any active part in making the purchase of the South Park tract, and personally she did nothing in the business of its management. That was substantially controlled by her husband, and it appears by her evidence that she had but very little - knowledge of the transactions resulting in the purchase of the property and the organization of the association. There is evidence tending to prove that the defendant John C. Culver, in the outset, contemplated making the purchase in his own name, with a view to the speculative enterprise, but that the views of his brother that the purchase should be made in the name of his wife, and that the husband should give his personal attention to the business, prevailed, and it was accomplished through or by the brother. Although all this may have been done in good faith, without any intent to defraud the creditors of the husband, and solely with a view to the creation of a separate estate of Mrs. Culver, the question, in view of the circumstances, was one of fact whether such was the sole purpose, and the conclusion was permitted that the intent on the part of the husband by the means employed was to put the title in his wife to hinder, delay, and defraud Ms creditors. It may be observed that in the Abbey and Coddington Cases, before cited, the question of good faith as against creditors was treated as one of fact. To the same effect is Knapp v. Smith, 27 N. Y. 277. Although the husband testified that the transaction was without any intent on his part to defraud his creditors, his relation to it was such as to bring Ms credibility in question; and, as the wife paid no value for the South Park property, the question of good faith on her part as to that purchase necessarily arises for consideration. Starin v. Kelly, 88 N. Y. 418.

The finding of the trial court that the defendant John C. Culver was insolvent at the time of the conveyance in question to Mrs. Culver has the support of evidence. While the burden was with the plaintiff to prove that the sum of $500 in question was, as to his creditors, the money of the husband, and that was dependent upon his intent to defraud them by the cover of the transaction from which such money was derived, there were circumstances made to appear by the evidence to permit the conclusion to that effect; and the result reached seems to have the support of evidence, in the view which the trial court may properly have taken of it. The judgment should be affirmed. All concur.  