
    Anton Jaeger, Respondent, v. John Kelley, Sheriff, etc., Appellant.
    (Argued February 17, 1873;
    decided February 25, 1873.)
    A creditor of a vendor, seeking to invalidate a sale upon the ground of fraud, must prove facts from which a legitimate inference of fraudulent intent can be drawn. Evidence simply justifying a suspicion is not sufficient ; nor is the vendor’s fraudulent intent sufficient. The vendee must be also implicated; and proof of inadequacy of price alone does not accomplish this.
    Appeal from judgment of the General Term of the Supreme Court in the first judicial department, modifying and affirming as modified a judgment in favor of plaintiff entered upon a verdict.
    This action was brought to recover the value of 1,3 64 gallons of wine alleged to have been unlawfully taken and converted by defendant.
    Plaintiff purchased the wine of one Theodore Lingenfelder at ninety-two and a half cents per gallon. He paid a debt of Lingenfelder of $250, paid the duties at the custom-house and bonded warehouse, and the balance he paid in money. The wine was levied upon by defendant, as sheriff of the city and county of Hew York, under and by virtue of an execution against said Lingenfelder and another.
    Further facts appear in the opinion.
    The court on trial directed the jury to find for plaintiff, submitting to them simply the value of the property; to which defendant duly excepted.
    Defendant’s counsel requested the court to submit to the jury the question of fraud. The court refused so to do and defendant excepted. The jury found for plaintiff as directed. A motion was made by defendant for a new trial upon the judge’s minutes, which was denied.
    
      J. 8. Smith for the appellant.
    Where the validity of a sale depends upon whether it was made with fraudulent intent, the judge must submit the ease to the jury. (2 R. S. [Edmonds’ ed.], 142, §§ 1, 4; Peck v. Crouse, 46 Barb., 151; Vance v. Phillips, 6 Hill, 433; Murray v. Burtis, 15 Wend., 214.) Inadequate consideration in the sale of property is strong evidence of fraud. (Roberts on Fraud. Con., 547 [marg. note]; Castle v. Bullard, 23 How. [U. S.], 349 ; Bailey v. Burton, 8 Wend., 349; Twyne's Case, 3 Co., 80 ; 1 Smith’s Ldg. Cases, 1.) Defendant was entitled to a new trial. (Cassin v. Delany, 38 N. Y., 178 ; Moffatt v. Sackett, 18 id., 522.)
    
      Ira D. Warren for the respondent.
    Interest on the value of the property at the time of the conversion is always allowed. (Andrews v. Durant, 18 N. Y., 502; Sedgwick on Dam., 477, note 1, and cases.)
   Church, Ch. J.

The only question in the case is whether the trial judge erred in refusing to submit to the jury the question whether the sale of the wine to the plaintiff was fraudulent as against creditors.

With the exception of the fact that the plaintiff purchased the wine at a little less than one-half its actual' value, as found by the jury, there is no substantial evidence tending to impeach his title, and it is well settled that mere inadequacy of price is not sufficient. The plaintiff' was engaged in the business; he paid in cash the agreed price and took immediate possession of the property. There is no evidence that he had any knowledge of the pecuniary circumstances of Lingenfelder, or that the latter owed' any other than the debt which the plaintiff paid as a part consideration for the wine. hTor is the vendor’s fraudulent intent sufficient. The vendee must be also implicated, and I can find no fact proved in the case, aside from inadequacy of price, which tends to impeach his good faith. It is urged that he prevaricated in his testimony. This cannot be affirmed as to the substantial facts, the purchase, payment of the consideration and taking possession, and the discrepancies as to minor details are not important. It is said that Eistel, the broker, who negotiated the sale, was a suspicious character, because the evidence tends to show that his real name was Isaacs; but what influence this should have upon the purchase I am unable to see. It is also said that Eistel acted in the transaction both for vendor and vendee, and that each is chargeable with his knowledge. If this were so, there is not the slightest evidence that Eistel knew any facts which would impeach the sale; but the evidence is that the plaintiff made the bargain for himself. Eistel solicited the plaintiff to buy, and if he was an agent at all, it was for the vendor; and the assistance he rendered the plaintiff in procuring a cellar in which to store the wine does not change it. To invalidate a sale, tangible facts must be proved, from which a legitimate inference of a fraudulent intent can be drawn. It is not enough to create a suspicion of wrong, nor should a jury be permitted to guess at the truth. If the transaction was different from what the plaintiff proved, it was incumbent on defendant to show it. Giving every circumstance urged by defendant’s counsel its utmost significance, the most that can be said is, that there was slight evidence justifying a suspicion that the plaintiff was not a tona fide purchaser, but this would not justify this court in reversing the judgment. The value of the wine may have been exaggerated at the trial, but the defendant offered no evidence upon the subject, and he must, therefore, take, the consequences of the plaintiff’s estimate. He may have supposed that if the value was reduced, the force of the circumstance of the inadequacy of price would be lessened,- and, with that out of the case, he would have no foothold. The wine was sold by the sheriff at public auction at a less price than the plaintiff paid, and there is more reason to doubt whether the price paid was in fact inadequate than that it was purchased in bad faith; but the jury have settled that question, and the defendant cannot now complain.

The deduction made at the General Term was for the benefit of the defendant, and was based upon the idea that the jury had made a mistake in estimating the whole value at two dollars a gallon, the price proved. The cases cited are not analogous.

The judgment must he affirmed.

Allen, Gboveb and Folgeb, JJ., concur.

Beckham, Andbews and Papaleo, JJ., dissent.

Judgment affirmed.  