
    James M. Holland, Respondent, v. Augustus H. Grote, Defendant, Impleaded with Ida F. Grote, Appellant.
    First Department,
    April 10, 1908.
    Conveyance in fraud of creditors—demurrer to answer—validity of complaint — allegation of facts constituting fraud — lien of judgment at timo of fraudulent conveyance — adequacy of remedy at law — return of execution unsatisfied—Statute of Limitations — validity of execution.
    On a demurrer to an answer, the defendant may attack the sufficiency of the complaint as if he had demurred thereto.
    The complaint in a suit in equity to set aside a conveyance of lands as made in fraud of creditors need not allege the facts showing fraudulent intent or the pecuniary condition of the defendant at the time, etc. It is sufficient if it be charged that the conveyance was made with an intent to hinder, delay, cheat and defraud judgment creditors and particularly the plaintiff.
    A complaint to set aside such fraudulent conveyance is not demurrable because it shows that the plaintiff’s judgment was a lien upon the defendant’s lands at the time of the conveyance.
    A judgment creditor may bring a bill in equity to set aside a conveyance made with an intent to hinder, delay and defraud creditors although he might sue at law to recover the money due on his judgment, if it be shown that he has exhausted his legal remedy by the issue of execution and a return thereof unsatisfied. The return of such execution unsatisfied is conclusive evidence that the legal remedy will not give adequate relief, and entitles the creditor to sue in equity to set aside a conveyance in fraud of creditors.
    The Statute of Limitations does not begin to run upon a judgment creditor’s suit until the issuance and return of execution, and when it appears upon the face of the complaint that the action was begun within six years from that date, the complaint is not subject to demurrer.
    
      If the statute was set in motion by the issuance of a prior execution not alleged in the complaint, the defendant must allege the fact as part of his defense of the Statute of Limitations.
    On demurrer to the complaint in such action the question as to whether the execution issued more than five years after entry of judgment was authorized under section 1877 of the Code of Civil Procedure will not be determined. McLaughlin and Houghton, JJ., dissented, with opinion.
    Appeal by the defendant, Ida F. Grote, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 12th day of December, 1907, upon the decision of the court, rendered after a trial at the Hew York Special Term, sustaining the plaintiff’s demurrer to three separate defenses set up in the answer of the said defendant.
    
      William C. Rosenberg, for the appellant.
    
      Otto B. Schmidt, for the respondent.
   Ingraham, J.:

The action was brought by a.judgment creditor of the defendant Augustus H. Grote to set aside a transfer of real property to the defendant Ida F. Grote. The plaintiff alleged that one Conrad Stein on the 27th of September, 1888, obtained a judgment against the defendant Augustus H. Grote in the City Court of the city of Hew York, and on the same day a transcript of the judgment was duly filed and said judgment docketed in the office of the clerk of the county of Hew York; that on the 7th of June, 1907, an execution upon said judgment against the property of the defendant and judgment debtor Augustus H. Grote was duly issued and delivered to the sheriff of - the county of Hew York, in which county the judgment debtor then resided and still resides; that on the 26th of June, 1907, said execution was duly returned by the sheriff wholly unsatisfied; that on the 1st of February, 1893, the judgment debtor “undertook to transfer and convey to the defendant above named, Ida F. Grote, his sister-in-law, by a certain deed of gift, that certain real estate of which he, the said Augustus H. Grote, was then the owner,” which real estate was particularly described; that there was no consideration whatever for the transfer and conveyance of the said property; that on the 8th of Hay, 1899, the defendant Ida F. Grote sold and conveyed the said premises to one O’Reilly in consideration of the sum of §20,970, and received the purchase money therefor; “ that the said attempted transfer and conveyance of said premises and property from the defendant Augustus H. Grote to the defendant Ida F. Grote, his sister-in-law, was without any consideration whatever and was made with intent to hinder, delay, cheat and defraud 'the creditors of the said defendant Augustus H. Grote, and particularly the said Conrad Stein, plaintiffs assignor, of his said judgment and claim, all to the knowledge of said defendant Ida F. Grote; ” that knowledge of this conveyance and of the facts stated had only come to the plaintiff recently, and that said Conrad Stein, plaintiffs assignor, was wholly ignorant of the said transfer and conveyance and of the facts set forth in the complaint until recently; that before the commencement of the action the said judgment was assigned by the judgment creditor to . this plaintiff; and the judgment demanded is that the transfer of the said premises and property of the judgment debtor to the defendant Ida F. Grote be adjudged fraudulent and void as against the creditors of the said Augustus XL Grote and particularly of this plaintiff, and that the plaintiff’s judgment be satisfied out of the proceeds of such property in the hands of the defendant ida F. Grote. To this complaint the defendant Ida F. Grote interposed an answer denying the material allegations of the complaint except the conveyance to her of the property and alleged three separate and distinct defenses: First, that the complaint does not state facts sufficient to constitute a cause of action; second, that the plaintiff has an adequate and complete remedy at law, and third, that the cause of action alleged in the complaint did not accrue to the plaintiff or his assignor within ten years from the commencement of the action. To these three defenses the plaintiff demurred as insufficient on the face thereof, and from the interlocutory judgment sustaining this demurrer the defendant Ida F. Grote appeals.

The first defense demurred to alleges that the complaint does not state facts sufficient to constitute a cause of action. This is probably insufficient as a defense, but as the defendant was entitled to attack the sufficiency of the complaint, that question is presented on this appeal. In determining that question it must be considered as if the defendant had demurred to the complaint. It is alleged that the defendant Augustus H. Grote, a judgment debtor, conveyed certain real property to the defendant Ida F. Grote without consideration, and that the conveyance was made with intent to hinder, delay, cheat and defraud his creditors and particularly the plaintiff’s assignor, who was then a judgment creditor, to the knowledge of the defendant Ida F. Grote. That this is a sufficient allegation to sustain an action to set aside a conveyance by a judgment creditor of the grantor is now settled in this State. The case of Kain v. Larkin (141 N. Y. 144) was an action by which the plaintiff sought to have adjudged and declared fraudulent and void as to her intestate a transfer of certain real estate made by one of the defendants to his daughter. The complaint alleged a recovery of a judgment; the return of the execution thereon unsatisfied; that after the cause of action accrued the defendant transferred his property which would be subject to the lien of an execution to his wife, daughter and brother by instruments particularly described; that this transfer was made without consideration and with intent to hinder, delay and defraud the plaintiff of her claim; and the relief demanded was that the conveyance be set aside and declared void and that a receiver be appointed for the purpose of applying the property to the payment of the judgment. The court held that these facts standing admitted upon the record established a cause of action by a judgment creditor against the defendant in the execution and his fraudulent grantees or transferees entitling the plaintiff to equitable relief; that the evidence necessary to support these allegations of a fraudulent intent may be, and usually is, made up of many different facts and circumstances, but it is not necessary to insert them in a pleading, and it is generally improper to do so ; that the pecuniary condition of the defendant at the time, the extent of his property, the part transferred and that retained, as well as the nature and extent of the plaintiff’s claim, which subsequently ripened into a judgment, were all facts bearing on the general allegation of fraud. The plaintiff could prove all these facts and circumstances under her complaint.” And that case was reaffirmed in Vollkommer v. Cody (177 N. Y. 124), where the court said : Moreover, insolvency, while a fact, is but an evidential fact which need not be alleged.” (Citing Kain v. Larkin, supra) The fact that when the transfer was made the plaintiff’s judgment was a lien upon the real property which the judgment creditor could enforce by execution, and, therefore, that the transfer could not have been made with intent to hinder, delay and defraud creditors, does not override the express allegation of the complaint which upon the question we are now considering must' be taken to be admitted — that the conveyance was actually made with intent to hinder, delay and defraud creditors in which intent the grantee participated. This fact would have a material bearing on the trial of the action in the determination by the trial court as to the intent with which the conveyance was made. But if the intent with which the conveyance was made is established to the satisfaction of the trial court upon competent evidence, the conveyance is void as to the creditors, even though the creditors had a remedy other than the judgment creditor’s action by which they could obtain relief. A conveyance of property with intent to hinder, delay and defraud creditors is void as to judgment creditors, and for relief against such a fraudulent conveyance a judgment creditor is entitled to apply to a court of equity. 1 think, therefore, that the complaint states a good cause of action, and this conclusion disposes of the first defense demurred to.

The second defense is that the plaintiff has an adequate and complete remedy at law. The right of a judgment creditor to attack a conveyance of property made with intent to hinder, delay and defraud creditors, in equity, irrespective of any other remedy by which he could recover the money due upon his judgment, is established in this State. It is necessary to allege and prove that the judgment creditor has exhausted his legal remedies to enforce his judgment by alleging and proving the issuance and return of an execution unsatisfied. That fact being alleged and proved is conclusive evidence of the failure of legal remedies to afford the judgment creditor relief and entitle him to maintain an action in equity to set aside the conveyance. Counsel for the defendant does not suggest what other remedy at law the plaintiff could possibly have. Considering the nature of the action it seems to me apparent that when the plaintiff has exhausted his remedy at law to enforce the judgment, an allegation that the plaintiff has another remedy at law is insufficient as a defense.

The third defense is that the cause of action alleged in the complaint did not accrue to the plaintiff or his assignor within ten years from the commencement of this action. The judgment was obtained in 1888 and the execution upon the judgment was issued in 1907. The complaint alleges that this execution was duly issued. Upon the allegations of the complaint, therefore, it is quite clear that the cause of action did not accrue until the issuance and return of the execution. In Weaver v. Haviland (142 N. Y. 534) it was held that the limitation applicable to an action of this kind was that prescribed by section 382 of the Code of Civil Procedure. The cause of action alleged in the complaint was based upon the issuance and return of the execution unsatisfied upon the judgment in 1907, and it is apparent that six years have not elapsed since the cause of action based upon the return of that execution unsatisfied accrued. The cause of action alleged in the complaint, therefore, did accrue within six years before the commencement of the action. The learned court at Special Term (56 Misc. Rep. 370) said: “ It, therefore, appears from the face of the complaint that the action was commenced in time, and if, because of the issuance and return unsatisfied of a prior execution which is not referred to in the complaint, the cause of action accrued within some period anterior to six years before the date of the commencement of the action, the necessary facts should be set up by the defendant to support the plea of the Statute of Limitations; ” and in that conclusion I agree. If, by reason of some facts not alleged in the complaint or which did not appear in the pleadings, the cause of action had accrued prior to the time when by the allegations of the complaint it had accrued, to make the Statute of Limitations available, the facts tending to show that such cause of action had accrued and was barred by the statute should be alleged. Upon the face of the complaint the cause of action had accrued within six years prior to the commencement of the action. If the plaintiff had lost the right to maintain the action because of some fact not appearing from the record, the defendant was bound to allege that fact as part of her defense of the Statute of Limitations. The question as to the validity of the execution or as to whether it was void or voidable as issued more than five years after the entry of judgment is not before us on this appeal. (See Code Civ. Proc. § 1377, and Aultmom & Taylor Co. v. Syme, 163 N. Y. 54.)

My conclusion, therefore, is that the complaint states a good cause of action, that neither of the defenses demurred to is sufficient upon the face thereof, and that the judgment must be affirmed, with costs, with leave to the defendant to amend her answer on payment of costs in this court and court below within twenty days.

Claeke and Scott, JJ., concurred; McLaughlin and Houghton, JJ., dissented.

McLaughlin, J. (dissenting):

A bad answer is good enough for a bad complaint. I do not1 think the complaint states a cause of action, and for that reason the demurrer to the three defenses set up in the answer should have been overruled.

The action is brought to set aside a deed of conveyance from Augustus H. Grote to the defendant Ida F. Grote, executed and delivered on the 8th of May, 1899, upon the ground that the same was made without consideration and with intent to hinder, delay and defraud the plaintiff’s assignor, a judgment creditor. The complaint alleges that the plaintiff’s assignor, one Conrad Stein, on the 27th of September, 1888, recovered á judgment against Augustus H. Grote in the City Court of the city of Hew York, and that on the same day a transcript of the same was duly filed in the county clerk’s office of the county of Hew York. This judgment thereupon became a lien upon the land conveyed, which the judgment creditor could, at any time within ten years thereafter, have enforced had he seen fit to do so. He could have sold the, land and applied the proceeds derived therefrom to the payment of the judgment. He did not -do this, but waited until the lien had ceased to exist, and then, when a conveyance was made, attacked it upon the ground that it was made with intent to hinder, delay and defraud. During the existence of the lien — had a conveyance been made — I do not see how he could have attacked it. Such conveyance would neither have hindered, delayed nor defrauded, because the conveyance would necessarily have been made subject to the lien of the judg-' ment and the land could have at any time been sold and the pro-, ceeds applied in payment of the judgment. The fact that the lien ceased to exist because he did not see fit to enforce it during the statutory period gave him no additional rights. The plaintiff, therefore, is not in a position to maintain that he or his assignor was hindered, delayed or defrauded by the conveyance sought to be set aside.

JB'or these reasons I am unable to concur in the opinion of Hr. Justice Ingraham.

I think the judgment appealed from should be reversed and the demurrer overruled, with costs in this court and in the court below.

Houghton, J., concurred.

11 Judgment affirmed, with costs, with leave to defendant to amend on payment of costs.  