
    John M. Dunn, App’lt, v. Thomas J. Whalen et al., Resp’ts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 18, 1893.)
    
    Fraudulent conveyance—Trust.
    In an action by a judgment creditor to set aside a conveyance of real estate by the defendant T. to B., his mother, it appeared that the indebtedness out of which the judgment in favor of plaintiff arose was contracted by T. prior to November 10, 1888; that in 1884 one M. conveyed to T. the premises in question, the consideration therefor was paid by B., and the agreement between defendants was that T. should hold the title in trust . for B. and convey to her upon request, which was done November 10, 1888. The judgment against T. was obtained in 1890. Held, that the complaint was properly dismissed.
    Appeal from a judgment of the supreme court entered in Monroe county, upon a decision of the trial judge dismissing the plaintiff’s complaint. The action was brought by the plaintiff as a judgment creditor of Thomas J. Whalen, to set aside a conveyance of real estate in the city of Rochester by the defendant Thomas to his mother, Bridget Whalen, on the ground that the same was made with the intent to hinder, delay or defraud the creditors of Thomas J. Whalen.
    
      Frederick W. Smith, for app’lt;
    
      Wilbur S. Osborn, for resp’t
   Lewis, J.

In the month of September, 1887, the plaintiff and the defendant, Thomas J. Whalen, entered into a copartnership, upon the terms that each should contribute equally to the capital stock and share equally in the profits and losses. After carrying on business for a time, the firm was dissolved, and the plaintiff adjusted the liabilities of the firm, and thereby became a creditor of the defendant, Thomas, and on the 26th day of January, 1889, commenced an action against Thomas for an accounting, and on the 3d day of January, 1890, recovered a judgment against him for $192.34. Judgment was duly docketed in the clerk’s office of Monroe county, and an execution issued for the collection thereof, which was, on the 5th day of July, 1890, returned unsatisfied. The indebtedness out of which the judgment in favor of the plaintiff arose was contracted by the firm prior to November 10, 1888.

On the 30th day of December, 1884, one Michael Me Roden conveyed to the defendant, Thomas J. Whalen, by deed dated that day, the premises sought to be reached in this action. The consideration for the conveyance was paid by the defendant Bridget Whalen. The conveyance was made subject to, and with the verbal understanding and agreement between said defendants that Thomas should hold title to said premises in trust for the defendant Bridget Whalen, and should convey said premises to her at any time when she might request him so to do.

On the 10th day of November, 1888, at the request of Bridget Whalen, Thomas executed and delivered to her a deed of the premises described in the complaint. Mrs. Whalen was in possession of the property, paying taxes and repairs thereon, during all the time the title was held by Thomas. Bridget paid no consideration to Thomas for this conveyance.

The trial justice found, upon evidence sustaining the findings, that this conveyance to Bridget was made by Thomas in good faith, and in pursuance of the agreement thei’etofore made, and under which Thomas held the title; that the conveyance was not made by Thomas for the purpose or with the intent of cheating or defrauding his creditors, or the plaintiff in this action ; and that the conveyance was not received nor accepted by Bridget for the purpose, or with the intent of aiding or assisting Thomas 'to cheat or defraud his creditors.

It is true, as is claimed by the plaintiff’s counsel, that there was no valid or legal trust which could have been enforced by Bridget Whalen. The conveyance by McRoden to Thomas vested in him the fee to the land, and no trust resulted in favor of Bridget because of the fact that she paid the consideration for the conveyance; and had the title remained in Thomas until the recovery of the judgment by the plaintiff, it would have been a valid lien upon the property. The plaintiff, however, had acquired no lien upon the property prior to its conveyance by Thomas to his mother.

The evidence tended to show that at the time of the conveyance of the property to Thomas, Mrs. Whalen was threatened with litigation, and, upon the advice of her counsel, she had the title taken by Thomas. At the time of the conveyance by Thomas her affairs had been adjusted, and the conveyance was made at her request. In conveying the property to his mother, Thomas discharged an equitable obligation that he was under to convey the property, and until the plaintiff acquired a lien u]3on the land by the docketing of his judgment, he had no legal or equitable claim upon it superior to that of Mrs. Whalen.

The case of Davis v. Graves, 29 Barb., 480, is in all of its essential features like the case at bar; and is an authority to sustain the judgment in this case. The doctrine of the case of Davis v. Graves has not been disturbed, but is approved in Holden v. Burnham, 2 Hun, 678.

This case was affirmed in 63 N. Y., 74.

It was also approved in Brooks v. Wilson, 53 Hun, 173; Ocean National Bank v. Hodges, 9 Hun, 161; Wait on Fraudulent Conveyances, § 176, and in 2 Bigelow on Fraudulent Conveyances, 123, 430 and 431.

The case was properly disposed of by the trial justice, and the judgment appealed from should be affirmed, with costs.

Dwight, P. J., and Macomber, J., concur.  