
    (86 Hun, 226.)
    HOLMES v. LITTLE.
    (Supreme Court, General Term, First Department.
    April 11, 1895.)
    1. Fraudulent Conveyances—Action to Set Aside—Evidence.
    In an action to set aside a deed for fraud, a finding that the paper was signed, sealed, and acknowledged, and caused to be recorded, by the grantor; that defendant (grantee) was ignorant of the existence of the deed until five years after it was recorded,—is insufficient to support a judgment against defendant, where there is no finding that the deed was delivered to defendant.
    ■ 2. Same—Subsequent Creditors.
    The intent of a debtor executing a deed is immaterial as to a creditor whose debt accrued afterwards, unless he then expected to be a creditor, or the deed was executed and delivered with the intent of defrauding subsequent creditors.
    8. Bankruptcy—Action by Creditor to Set Aside Deed.
    A creditor cannot sue to set aside a deed made by the debtor after the appointment of an assignee in bankruptcy, but the assignee alone can sue.
    Appeal from special term, New York county.
    Action by John A. Holmes against Andrew Little to have a deed of real estate declared void, and recover rents received by defendant. From the interlocutory and final judgments in favor of plaintiff, defendant appeals.
    Reversed.
    Argued before VAN BitUNT, P. J., and O’BRIEN and FOLLETT, JJ.
    A. 0. Thomas, for appellant.
    T. J. Keigharn, for respondent.
   VAN BRUNT, P. J.

From the findings made by the court upon the trial of this action, it appears that on the 1st of November, 1873, one James Boyle was seised in fee simple of certain lands and premises known as “Nos. 22 and 24 Mangin Street,” in the city of "New York; and that on or about said 1st November, 1873, said James Boyle and Margaret, his wife, signed, sealed, and acknowledged a deed of said land and premises purporting to convey the same to one Andrew Little, the defendant. The consideration expressed in said deed was the sum of $16,000, and the assumption of mortgages upon said property, amounting to the sum of $4,900. The paper so signed, sealed, and acknowledged was caused to be recorded on said 1st of November, 1873, by said Boyle. At no time prior to the recording of said deed did the defendant authorize or sanction the placing of the same upon record; and the defendant was ignorant of the existence of the same until about the month of January or February, 1878, when the same was handed to him, and he objected to the same, and returned the same to said Boyle or his attorney, and left the same with said Boyle’s attorney, to have the same corrected or exchanged. The defendant never afterwards got said deed from said Boyle or said Boyle’s attorney. The consideration of $16,000 expressed in the deed was never paid, and the grantee never paid or agreed to pay for said property the sum of $16,000, and never agreed to assume or pay the mortgages upon said property. From the day said paper was signed, November 1, 1873, down to the time of his death, on the 26th of January, 1881, James Boyle remained in possession and control of the premises, and he never paid to the defendant, Little, the grantee in said deed named, and the said defendant never asked, demanded, or received from said Boyle, any rent for the same. The court further found that said alleged deed was signed, sealed, and acknowledged by said James Boyle with the intent and for the purpose of hindering, delaying, and defrauding his creditors, and not with the intent of conveying said property to the pretended grantee, the defendant herein; and that during the year 1874, and down to and after the year 1879, the said Boyle was indebted to the firm of W. & A. Holmes & Cfc>., hereinafter mentioned, and was during a part of that period engaged in creating or incurring the debt for which the judgment found in the first finding herein was rendered and given. During the year 1878, James Boyle was adjudicated a bankrupt, on his own petition, in the district court of the United States for the Southern district of New York, and the court refused to grant him a discharge from his debts. On the 26th of October, 1880, the plaintiff, John A. Holmes, and his copartners, doing business under the said firm name of W. & A. Holmes & Co., recovered a judgment against Boyle in the supreme court of the state of New York for the sum of $9,637.30. Subsequently, the plaintiff became the sole owner of said judgment. From #he year 1883 to the 6th day of January, 1891, the defendant has received from said premises, as rent for the same, sums varying from $700 to $800 each and every year, the exact amount of which is unknown. The assignee appointed in bankruptcy died before the commencement of this action, and he never took or instituted any legal proceedings to have the alleged deed, which, was signed, sealed, and acknowledged by said James Boyle and wife °on the 1st of November, 1873, to the defendant, declared void, or to compel the said defendant to account for the proceeds of said property. On the 1st of November, 1873,' James Boyle was not indebted to the firm of W. & A. Holmes & Co., nor were said firm nor its members then creditors of said Boyle. The claims for which the judgment of the firm of W. & A. Holmes ,& Co. against Boyle was obtained were upon three notes,—one dated September 8,1875; one dated October 16,1877; and the other dated December 15, 1877. On the 19th of January, 1891, the defendant sold and conveyed to one John Nealy the premises in question, for the consideration of $16,000. The defendant received from said Nealy $5,000 of said purchase money, and now holds a mortgage for $11,000 on said premises, upon which interest has been paid by Nealy to the defendant. Prior to the 16th of January, 1893, the plaintiff duly instituted and took legal proceedings to obtain leave to issue an execution upon said judgment against Boyle to enforce and collect the same out of said real estate; and on the 8th day of May, 1891, the surrogate’s court duly made and entered a decree granting the plaintiff leave to issue said execution. On the 16th of January, 1893, such execution was duly issued, and the same was levied upon the real estate in question; and such real estate was sold for the sum of $12,165.75, leaving a balance remaining uncollected of said judgment of $4,656.15. Upon this state of facts, the court found, as conclusions of law, that the alleged deed, signed, sealed, and acknowledged by said James Boyle on the 1st of November, 1873, was signed, sealed, acknowledged, and recorded by Mm with the intent and for the purpose of hindering, delaying, or defrauding the creditors of said Boyle; that said alleged deed was never delivered to or accepted by the defendant prior to January or February, 1878; that ever since the 26th of October, 1880, said judgment, recovered by Holmes & Co., has been and continued to be a lien on said land and premises down to and including the 18th of March, 1893, the day upon which the sheriff sold the same under said execution; that the plaintiff is entitled to judgment in this action, against the defendant, declaring said alleged deed of said premises fraudulent and void as to the plain-i tiff; that there was due to said plaintiff on said judgment the sum ' of $4,656.15; and that the plaintiff was entitled to judgment against said defendant for an accounting of the rents and profits of such land and premises received by him; and a referee was appointed to take and state the account. This interlocutory judgment was subsequently amended by requiring the defendant to account for the rents which said defendant might or could have received during all the time he claimed , to have held possession of said property. An accounting being had before the referee, the referee refused to allow the defendant the taxes and assessments paid upon the property, besides the interest paid upon the taxes, and charged the defendant with a yearly rental, amounting to about $800, as the rental which he might or could have received from said premises between the 1st of November, 1873, and the 1st of September, 1882, when he first began to collect the rents. Upon the coming in of this report, a final judgment was entered, and from said interlocutory and final judgments this appeal is taken.

Upon an examination of the foregoing facts, it seems to us that they are fatally defective, in the first place, in not finding that there was ever any execution of the deed in question by delivery to the defendant; and, in the next place, the question as to what was the intent of James Boyle in the signing, sealing, and acknowledging of the deed on the 1st of November, 1873, seems to be entirely immaterial as far as this plaintiff was concerned. He was not a creditor of Boyle at that time. It is not found that he expected to be a creditor, or that Boyle expected him to be a creditor, nor that Boyle signed, sealed, acknowledged, and delivered the deed in question with any intent of defrauding subsequent creditors. The claims upon which the judgment is obtained which is the foundation of this suit seem to have accrued in 1877, and therefore the conveyance by Boyle in 1873 does not seem to have done much harm to this plaintiff. If it be said that Boyle remained in possession of the premises to the time of his death, and was in possession thereof at the time of the contracting of this debt, our attention has not been called to any evidence or to any finding that any portion of this debt was contracted upon the faith or knowledge or the assumption of knowledge of ownership in Boyle in the premises in question. It is expressly found that the defendant never accepted the deed, and consequently there never was a complete execution of the deed,"it never having been delivered to and accepted by him. It is true that from 1883 down to the time of the sale to Nealy the defendant collected the rents of the premises in question, and from such action it might be inferred that the defendant had from that date accepted the conveyance, and gone into possession of the premises. But how, under such circumstances, he can be charged with the value of the use and occupation of these premises from the 1st of November, 1873, down to the time when he commenced to take the rents, it is difficult to imagine.

Further, it is found that during the year 1878, James Boyle was adjudicated a bankrupt on his own petition, and it would appear that an assignee in bankruptcy was appointed, because it is found that the" assignee appointed in the bankruptcy proceeding died before the commencement of this action, having taken no proceeding to set aside the deed in question. Now, it is a well-settled rule of law that, upon the appointment of an assignee in bankruptcy, all the property of the bankrupt becomes vested in the assignee by virtue of the adjudication of bankruptcy and the appointment of such assignee, and all property conveyed by the bankrupt in fraud of his creditors is expressly included therein. The title to the rents and profits which are claimed in this action by the plaintiff was vested, therefore, in the assignee in bankruptcy, and, he having died, belonged to his successor, when such successor shall be appointed. Even if it be assumed that, the creditor, where an assignee refuses to bring an action for the purpose of recovering property belonging to the estate, may bring such action making the assignee a party, the fruits of such action, however, must be brought in court for the benefit of the creditors of the bankrupt, to be administered in due course of proceedings in bankruptcy. Such an action is an aid to the bankruptcy proceeding, and of the application of the property fraudulently disposed of by the bankrupt to the payment of his creditors, generally. In such a proceeding no creditor can procure a preference by reason of the bringing of such an action. In the case at bar the plaintiff seeks to seize upon this asset, without regard to the rights conferred by the bankruptcy proceeding, and without regard to the rights of any other of the creditors of James Boyle who may be entitled to participate therein. In other words, the plaintiff seeks to have this court to administer the estate of the bankrupt, the title to which has been divested by the proceedings in bankruptcy, and not represented before the court.

It seems to us that the judgments must be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.  