
    John T. Fitzpatrick, Pl’ff, v. John Burchill et al., Def’ts.
    
      (New York Common Pleas, Equity Term,
    
    
      Filed November, 1893.)
    
    1 Husband and wife—Conveyances.
    A deed by a husband to his wife is valid in equity, unless in violation of the rights of creditors.
    2. Same.
    Where, in such case, a deed was executed before the enactment of chap. 537 of 1887, while the husband was not indebted and without intent to defraud, a subsequent deed by him to her vests the legal title in her as against his creditors, whose claims accrued between tlie delivery of the ñrst and second deed.
    Action to set aside a deed made by husband to wife, as in fraud of creditors.
    
      James Kearney, for pl’ff; John Hardy, for def’ts.
   Bisohoff, J.

The real property affected by this litigation appears to have been conveyed by the defendant, John Burchill, to his wife, Mary Burchill, by two separate conveyances—the first dated July 2d, 1886, and recorded January 18th, 1887 ; the second, dated July 17th, 1891, and recorded July 20th, 1891. Subsequent to the date and record of the first conveyance, John Burchill became indebted to plaintiff’s assignor, and for this indebtedness judgment was recovered and docketed against the former by the latter after tlie date and record of the second conveyance. Plaintiff assumed the first conveyance to he ineffectual because it was made by the husband to liis wife without the intervention of a third party, and alleged that the second conveyance, which was made after the passage of tho act of the legislature (Laws 1887, c. 587) declaring conveyances thereafter made by a husband direct to his wife, or vice versa, to be valid, was without consideration, and fraudulent, as against him and his assignor.

There is, in my opinion, abundant evidence to sustain the claim of the defendant Mary Burchill that at the time of the conveyance of tlie premises by Gustav Wolfors and Antonie, his wife, to John Burchill; her husband, in April, 1886, she advanced the purchase money from her own means, and that John Burchill’s conveyance to Mary Burchill, in December, 1886, was made in discharge of the former's obligation to reimburse the latter; so that the last mentioned conveyance cannot be said to have been made without consideration. The second conveyance by John Burchill to his wife appears to have been made under an apprehension that the first was void because it'was made prior to the act of the legislature hereinbefore referred to, and would not be cognizable in law-or in equity. Had this apprehension been well grounded, it seems clear that John Burchill’s obligation to repay his wife the sum advanced by her would have continued, and his indebtedness thus would have furnished adequate consideration for the second conveyance. Savage v. O'Neil, 44 N. Y., 298; Jaycox v. Caldwell, 51 N. Y., 395. But, for the purposes of this action, we may assume that no actual or pecuniary consideration passed from Mary Burchill to John Bur-chill at any time; and we may yet reach the conclusion that the latter’s conveyances are, and each of them is, operative and incontestable. It is conceded that tbe indebtedness for which plaintiff’s assignor recovered judgment against defendant John Burchill did not arise until after the latter’s first conveyance to his wife. It was therefore, at the time, competent for John Burchill to make a gift of the promises; and as the case is destitute of all evidence tending to show that, at the time of the first conveyance, the parties thereto contemplated tlie contraction of any debt or debts by John Burchill to plaintiff’s assignor, or others, the gift of the premises would not be opea to attack because of a fraudulent design on the part of the grantor and grantee. Assuming, next, that John Burchill’s first conveyance to Mary Burchill was operative as a gift, then the second conveyance to her did not divest him of anything more than the nominal legal title; and Mary Burchill cannot be truly said to have acquired, by means of the second conveyance, anything of which she was not already the owner, unless it be tbe nominal or legal title thereto. Logically, therefore, plaintiff’s success in this action is dependent upon the invalidity of John Burchill’s first conveyance to his wife. This conveyance, however, plaintiff only assumed to be void, as matter of law. It is not otherwise attacked, and the only conveyance which the complaint in this action seeks to have annulled as fraudulent towards creditors is the second. It is true, ns plaintiff’s counsel observes, that a conveyance from husband to wife, or wife to husband, was, prior to the act of the legislature hereinbefore referred to, void in law, and ineffectual to divest the grantor of the legal title. This was the inevitable result of the legal unity of husband and wife. To render any conveyance valid, there must be a grantor and a grantee. The legal unity of husband and wife destroyed their capacity to contract with each other, and a conveyance between them, therefore, lacked parties,—an essential element in every valid contract. In equity, however, the duality of husband and wife has been recognized from a very early period; and conveyances, from one to the other, without the intervention of a third party, have been held valid anil effectual, in the absence of elements which would have rendered their enforcement unconscionable, and converted them into means of fraud and iniquity.

Berkowitz v. Brown, 3 Misc. Rep. 1; 53 St. Rep. 625, cited by plaintiff's counsel in support of bis proposition that John Burch ill’s first conveyance to his wife was void, will, upon careful examination, prove to be authority directly to the contrary. That case involved the question whether or not a conveyance by the wife directly to her husband was valid ; and the conclusion reached by me was that it was void absolutely in law, but presumptively, only, in equity. The presumption against its validity arose from the confidential relation of husband and wife, and the supposed influence of the husband, as the dominant party, upon the conduct of his wife. But 1 distinctly alluded to it that tins presumption could be overcome by proof that the wife received adequate consideration; that the conveyance inured to her advantage, and that it was not exacted of her by threats, duress, fraud, or other unconscionable means; and that upon such proof the conveyance would be upheld. If the husband is the grantor, and the wife the grantee, and the conveyance imposes no burdens upon her, the presumption referred to does not arise; and in such a case it will be assumed that the conveyance was intended as a provision for the wife’s support, or as a gift prompted by tenderness and natural affection. A wife lias at all times been the object of extreme solicitude of courts of equity respecting the possession and enjoyment of property; and gifts to her from her husband, whether real property or chattels, have ever been sanctioned by those courts whenever the rights of others did not intervene to render those gifts unconscionable. Shepard v. Shepard, 7 Johns. Ch. 56; Winans v. Peebles, 32 N. Y. 423; Hunt v. Johnson, 44 N. Y. 27, 36; Dean v. Met. El. Railroad Co., 119 N. Y. 547; 30 St. Rep. 81; Garlick v. Strong, 3 Paige, 440; Moore v. Page, 111 U. S. 117 ; 4 Sup. Ct. 388 ; Corcoran v. Corcoran, 119. Ind. 138; Turner v. Shaw, 96 Mo. 22; Beach, Mod. Eq. Jur. § 181 et seq. Regarding the first conveyance from the defendant John Burchill to Mary Burcliill, his wife, as having effectually divested him of the equitable and beneficial ownership of the premises, and as having transferred it to her, the subsequent conveyance of a naked legal title to the same property, though it may have been without substantial consideration, can in no sense be deemed fraudulent, as against creditors of the grantor.

Judgment for defendants, with costs.  