
    Peter F. Bogert and Others, Respondents, v. Emma Hess, Appellant, Impleaded with Karl Hess.
    
      fraudulent conveyance — a deed by a husband to his wife with intent to defraud his creditors—such intent on his part alone will not invalidate the deed as to the
    
    The fact that a wife is the grantee in a deed, made by her husband with intent to defraud his creditors, does not so connect her with her husband's fraudulent intent that proof of such intent on his part aloné will invalidate the deed.
    Where, in an action brought against the husband and wife to set aside the deed, evidence is introduced tending to show fraud upon the part of the husband, it is error for the court to state that the wife was connected sufficiently with the transaction “ by being the grantee in the deed,” and that, “ as a conversation or a happening, it (the evidence) has no effect upon her. I do not say that it does not affect the conveyance to her.”
    Appeal by the defendant, Emma Hess, from a judgment of the Supreme Oourt in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York on the 13th day of May,T899, upon the decision of. the court rendered after a trial at the Hew York Special Term.
    
      Joel M. Marx, for the.appellant.
    
      John G. Robinson, for the respondents.
   Patterson, J.:

This action was brought by judgment creditors of Karl Hess to set aside a conveyance of land made by him to his wife, Emma Hess,, it being claimed that such conveyance was made with intent to hinder, delay and defraud creditors. The defendant Emma Hess alone answered. After trial of the issues, judgment was directed for the plaintiffs.

The defendant’s position on the trial was, that the property was conveyed to her by her husband in satisfaction of a claim she had ■against him for about $10,000, which amount she gave into his-possession some years before to take care of and save for her. The trial judge decided that the conveyance was made without consideration. We think the proof would have supported the contrary conelusion, but without commenting upon that phase of the case, the judgment should be reversed for an erroneous ruling as to the effect of evidence admissible in one aspect but incompetent for the purpose for which it was undoubtedly used.

The plaintiffs, to establish the fraudulent character of the deed, offered to show that an action having been brought by them in a Municipal Court against Karl Hess, he by his attorney procured the plaintiffs’ attorney to consent to adjournments, and after he had secured the last of them, allowed judgment to be taken by default. In the meantime the conveyance assailed in this action was made. The inference was sought to be drawn that Karl Hess availed himself of the delay to put the property out of his hands so that • a judgment could not be enforced against it. A witness was asked concerning a conversation between him and Karl Hess’ attorney on the subject of the adjournments. The testimony seems to have.been allowed on the ground that it affected the deed and not merely as bearing upon the intent of the grantor. It could not affect the deed if the grantee received it in good faith and for value. It is evident that the ruling was that the intent of the grantor would invalidate the deed. The witness was asked to state what occurred in the Municipal • Court in connection with the action pending therein. This was objected to, the court remarking that it had “ no binding force against the defendant Emma Hess. It is quite material, though otherwise.” Counsel for the defendant then remarked that materiality could not arise unless conspiracy was shown sufficient to connect. Emma Hess with the transaction. Whereupon the court declared that “ she is connected sufficiently by being the grantee in the deed.” Then the objection-was overruled and an exception was taken by the defendant. The court then stated that “ there is no exception needed,- because the court states that it is not binding upon the - defendant. that you represent.” Thereupon the' counsel expressed himself as satisfied. The court added, ■ however, that as a conversation or a happening, it has no effect upon her. I do not say that it does not affect the conveyance to her.” Then an exception was taken.

The indication here is quite plain that the court regarded the fact of Emma Hess being the grantee in the deed as sufficiently connecting her with a fraudulent purpose on the part .'of her husband, which ' would invalidate the deed and that the conveyance might be avoided by reason of the intent of the grantor alone. The evidence could in no way affect the conveyance to her-if she were a grantee for a valuable consideration and in good faith, although the deed was made to secure her preferentially for an honest indebtedness due by her husband to her. As a transaction between husband and wife a suspicion might attach to it. Such transactions are very closely scrutinized by courts. It was taken for granted almost, in this case, that the nature of the transaction stigmatized it as fraudulent, whereas the indications are quite the contrary.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Van Brunt, P. J., and McLaughlin, J., concurred ; Ingraham, J., concurred in result.

O’Brien, J.:

I think the evidence objected to was competent. Upon the ground that the weight of evidence would require a different conclusion than that reached, I concur in the result.

Judgment reversed, new trial ordered, costs to appellant to abide event.  