
    Margaret Kain, Adm’rx, Resp’t, v. Patrick Larkin et al., App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December 28, 1891.)
    
    Fraudulent conveyance—Statements made in supplementary proceedings.
    Where it is desired to show the fraudulent intent of a grantor of real estate, his statements made upon an examination in proceedings supplementary to execution are competent against him, and proof of such statements may be made by the testimony of those who heard the party testify upon such examination.
    Appeal from judgment in favor of plaintiff entered on decision of the court.
    
      F. L. & F. A. Westbrook (F. A. Westbrook, of counsel), for app’lts; G. B. Adams, for resp’t.
   Kellogg, J.

This is a creditor’s suit, an action in equity to set aside a deed of real estate as made to hinder, delay and defraud plaintiff, as creditor of Patrick Larkin, the grantor named in the deed, and to declare plaintiff’s judgment a lien on the premises described in the deed, or to subject such property, through the agency of a receiver, to the payment of such judgment

In ¡November, 1886, defendant Patrick Larkin caused, through negligence or malice, the death of one David Kain.

The cause of action created by statute dates back to the death of David Kain, in ¡November, 1886. Action was commenced soon after, and service of summons made upon Patrick Larkin January 6, 1887. Judgment herein was perfected October 16, 1890, for $1,518.28. Execution was issued "and returned unsatisfied. Immediately after service of summons defendant drew from bank his deposits, some $1,400, and redeposited the most of the same money in bank in the name of his wife. It is not shown that he had any other personal property. At about the same time he executed a mortgage to his brother for $3,000 on his real estate, being the full value of the premises. All this was done within a week after the commencement of the action.

Defendant had one child only, the defendant, Maria E. Larkin. About May 1, 1889, and while that action was pending, defendant, Patrick Larkin, deeded his real estate to her, she being then a minor in age, and the mortgagee satisfied of record the $3,000 mortgage. The expressed consideration of the deed was “ one dollar and natural affection.” It does not appear that defendant had any other property, or was owing any debt other than the claim sued upon by plaintiff in this action. The reasonable deduction from the evidence is that by his acts within a week after the commencement of that action the defendant, Patrick Larkin, apparently divested himself of all his real and personal property solely to prevent any portion being taken to pay any judgment which might result in that action. That the disposition of his money and the creation of the mortgage were both fraudulent acts so far as creditors were concerned.

It is also a reasonable deduction from the evidence that at the time of deeding this real estate to his minor child he was insolvent ; that by the deed he conveyed whatever interest he had in all property.

It does not appear that he disposed of any other property between the date of this deed and the time of return of execution on that judgment wholly unsatisfied. Indeed, it nowhere appears that he had at any time any other property than this money turned over to his wife and this real estate deeded to his daughter.

The defendant, Maria E. Larkin, makes a feeble effort to show a consideration for the deed moving from her to her father. She lived at home as other minor children mostly do, was supported there and did some service there as in duty bound. She does not disclose any facts upon which a court could predicate any legal or equitable claim against her father during her minority. She did in obedience to her father’s commands only what she was bound to do without compensation, and if promise of future compensation was ever held out to her it must take the aspect of a promise of a gift in futuro. And no gift made in pursuance of such a promise, where a person is unable at the time to pay his creditors in full, will be claimed to be valid.

The conclusion is irresistible that the defendant, Patrick Larkin, had the intent, in making this disposition of his property, to delay and defraud his creditor, the plaintiff in this action. And if it were necessary to pass upon the question of intent on the part of the grantee in this deed of gift, it would be far from necessary to torture the plain meaning of the whole evidence and the reasonable inferences to conclude that the defendant, Maria B. Larkin, had a like fraudulent intent.

We see no error in the findings of fact or law.

The admission as evidence against Patrick Larkin of his statement upon supplementary proceedings was proper. It was important to show that Patrick Larkin in this disposition of his property had the intent to defraud his creditors. And it was proper to prove that; independent of any intent on the part of the grantee. The intent of the grantee when necessary to be shown may depend upon quite other proof.

The methods taken to prove such statements were proper, viz: the testimony of those who heard him make them. The testimony taken in supplementary proceedings is not made by statute so far a record as to make it primary proof in all other actions to the exclusion of other proof. If it were so it would necessarily have the weight of sworn testimony, and not the weight accorded to a simple admission of a party.

The judgment should be affirmed, with costs.

Learned, P. J., and Mayham, J., concur.  