
    Albert C. Goff, as Executor, Etc., Plaintiff, v. Mary J. Alexander and Emma Ames, Defendants.
    (Supreme Court, Orleans Special Term,
    June, 1897.)
    1. ¡Fraudulent conveyances — Consideration,
    Where a mother promises an annual payment to her daughter, in consideration of a residence with, and care from, the daughter furnished and bestowed upon an infant child of the mother, and subsequently, in consideration of the full performance by the daughter of the agreement, conveys to the daughter all her interest under the will of her father, a sum not excessive, the executor of a judgment creditor of the daughter cannot maintain an action to set aside the transfer as in fraud of the rights of the estate of the creditor.
    2. Same — Intent.
    The transfer cannot be said to have been voluntary, and the question as to the intent of the grantor is, under the statute, one of fact and must be submitted to the jury
    Action to set aside the conveyance of real estate, on the ground that it was made to defraud creditors
    Thomas A. Kirby, for plaintiff.
    Filtins & Coe, for defendants.
   Woodward, J.

This is an action brought by Albert 0. Goff, as executor of the estate of Hiram S. Goff, deceased, to set aside the transfer of certain real estate in the town of Eidgeway, Orleans county, by Mary J. Alexander to Emma L. Ames, on the ground that the said transfer was fraudulently entered into for the purpose of preventing the plaintiff from collecting a judgment against the defendant Alexander, amounting to $254.31. The facts established by this evidence are that some time prior to the year 1884 one Eobert Mills died in the town of Eidgeway, Orleans county, and that at the time of his death he was the owner of a farm in the said town, consisting of about fifty-nine acres of land, on which there was a mortgage) amounting, at the time of the beginning of this action, to about $509. Mr. Mills was survived by his widow, and by his daughter Mary J. Alexander, who has three children living. He left a last will and testament, by which he bequeathed to his widow the use of the farm during her life, and after her death the sum of $400 payable to Mary J. Alexander, and $200 to each of her three children. Emma L. Ames was one of the daughters of the said Mary J. Alexander, and she was about to be married to Simeon 0. Ames. Ada Alexander, another daughter of Mary J. Alexander, was at this time aged about seven years, and on the marriage of the daughter Emma, it became necessary to make a change in the household arrangements, and it was agreed that Ada should be taken into the home of Emma .Ames and maintained until she should be old enough to provide for her own support, for which Mrs. Ames was to be paid $100 per annum by Mary J. Alexander. Pursuant to this arrangement the said Ada Alexander did enter the home of the said Emma Ames, one of the defendants in this action, remaining until after she was sixteen years of age, and up to the time of the beginning of this action. On the 13th day of July, 1896, the said Mary J. Alexander conveyed by deed all of her interest in said premises to the said Emma L. Ames, in consideration of the care and maintenance of the said Ada Alexander.

On the 10th day of June, 1884, one Hiram S. Goff obtained a judgment against the said Mary J. Alexander for the sum of $254.31, damages and costs, which was duly docketed in the clerk’s office in the county of Orleans, and an execution was issued, which was returned wholly unsatisfied. Subsequently, the said Hiram S. Goff died, leaving a last will and testament, which was duly admitted to probate, in which the plaintiff in this action was appointed executor of the said will and testament. On the 11th day of July, 1896, an execution was issued by one T. A. Kirby, an attorney and counselor-at-law in this State, and it was issued in the name of the-said executor against the said Mary J. Alexander, and upon said judgment. This execution was returned by the sheriff wholly unsatisfied prior to the beginning of this action, and the said judgment has not in any manner, been renewed as required by section 1252 of the Code of Civil Procedure.

The plaintiff demands judgment decreeing the deed herein described as null and void,” and “ adjudging the judgment herein described to be. a lien upon the said real estate.” ' In support of this demand," the plaintiff, through his attorney, contends that the transfer following immediately upon the issuing of the second execution in July, 1896, was fraudulently made, and for the purpose of-defeating or delaying the collection of the debt owed to the plaintiff by the defendant. As bearing upon this point the learned counsel cites Babcock v. Eckler, 24 N. Y. 632, and quotes as follows: “If the necessary consequences of a conceded transaction was the defrauding of another, then as a party must be presumed to have foreseen and intended the necessary consequences of his own act, the transaction itself is conclusive evidence of fraudulent intent, for a party cannot be permitted to say that he did not intend the necessary consequences of his own voluntary act.” In a like strain are the quotations from Rice on Evidence, and Bump on Fraudulent Conveyances, but none of these authorities deals with the case as it is presented in this action. The fact that Mrs. Ames accepted from Mrs. Alexander a transfer of property in discharge of an obligation does not operate to- defraud the plaintiff any more than the sale of the same property under the execution would operate to defraud Mrs. Ames; it simply operated to exhaust the means of Mrs. Alexander to- pay all of her debts. Mrs. Ames, it is conceded, had cared for and maintained the infant daughter of Mrs. Alexander for a period of several years; this care and maintenance would undoubtedly entitle the defendant, Mrs. Ames, to compensation even in the absence of a contract, and certainly this court cannot presume to set aside a transfer of property in pursuance of an agreement specifically entered into, and the terms of which had already been carried out on the part of the defendant, Mrs. Ames. Had the learned counselor of this court read the case of Babcock v. Eckler with the purpose of solely guiding aright its decision, he would have continued the clause which he quotes, as did the court. It says: “ Intent or intention is an emotion or operation of the mind, and can usually be shown only by acts or declarations, ap.d as acts speak louder than words, if a party does an act which must defraud another, his declaration that he did not by the act intend to defraud, is weighed down by the evidence of his own act. But in such a case it is not proper to say that there is a presumption or conclusion of law that the transaction is fraudulent; but it is proper to say that the circumstances of the transaction, or the transaction itself, is conclusive evidence of fraud.” The same court, in discussing the contention of Chancellor Kent, in the case of Reade v. Livingston, 3 Johns. Oh. 500-501, that a voluntary conveyance was presumed to be fraudulent as against all existing debts, without regard to their amount, and other similar rulings, says: “A different doctrine was held in Jackson v. Town, 4 Cow. 599, and by Judge Spencer, in Verplanek v. Sterry, 12 Johns. 556, though perhaps not decided in the case. In this case, Judge Spencer said: ‘If the grantor be not indebted to such a degree as that the settlement will deprive the creditors of an ample fund for the payment of their debts, the consideration of natural love and affection will support the deed, although a voluntary one, against his creditors; for, in the language of the decisions, it is free from the imputation of fraud.’ In Jackson v. Seward, 8 Cow. 406, it was held by the Court of Errors, that a conveyance or settlement, in consideration of blood and natural affection, though by one indebted at the time, was prima facie only, and not conclusively fraudulent. Subsequently, by section 4, of title 3, of chapter 7, part 2, of the Revised Statutes, 137, it was declared that the question of fraudulent intent in all cases arising under the provisions of that chapter, should be deemed a question of fact; and that no conveyance or charge should be adjudged fraudulent as against purchasers or creditors, solely on the ground, that it was not founded on a valuable consideration. The question in this case arises under the provisions of this chapter of the Revised Statutes, which treats “ of fraudulent conveyances and contracts, relative to goods and chattels and things in action.” No decision or series of decisions, then, can make the question of fraud in this case a question of law, or establish that there is a legal presumption of fraud from the facts and circumstances found by the referee; for the statute declares .that the question of fraud shall be deemed a question of fact, and by declaring it to be a question of fact, in effect declares that there is no such legal presumption. No decision or series of decisions can repeal a statute. The statute substantially declares, and was intended to declare, the doctrine held in Jackson v. Seward, supra.Continuing, the court says: “ The question really is, and must be in such cased, considering the amount of debts and the value or amount of the property retained, and all the other circumstances of the case, is the conveyance or transfer fraudulent? * * * The view I have taken of the question, continues the court, has been the most favorable for the respondents, for I have assumed the transfer of the property to Mrs. Eckler, in 1855, to have been voluntary; but I am inclined to think that, on the facts found by the referee, Mrs. Eckler in equity would have been deemed a creditor of her husband to the amount of $3,500.”

In the case now under consideration the transfer was not voluntary, in the sense that this word is used by Chancellor Kent; it was made in discharge of an obligation which might have been enforced at law. It could not, therefore, come under his harsh rule of presumption, while in the decision of the court, in the case relied upon by counsel for the plaintiff, it is clearly asserted that no such presumption can exist. The case rests, therefore, upon the testimony of Guy Merrill that “ I think she has asked me at different times if there was any way of her dodging the judgment.” He is not certain of this; at no point does he state anything positively that Mrs. Alexander has said to him in reference to the question, and, even if we are to concede that she has made inquiries, it is not inconsistent with the idea that she was actuated by a desire to save her property for the purpose of discharging the obligation which she owed to her daughter, rather than from a desire to1 den fraud the plaintiff in this action.

Whether the second execution, issued after, a lapse of more than ten years from the filing of judgment, was adequate to exhaust the remedy at law, or whether this question was sufficiently raised in the proceedings before this court it is not necessary to inquire at this time. The facts involved are sufficiently clear to show that the transfer of this property was made in good faith, in the discharge of a valid obligation, and the demand of the plaintiff for judgment is denied, and a judgment in favor of the defendants, with the costs of this action, is ordered.

Judgment for defendants, with costs.  