
    William H. Weaver, Resp't, v. William W. Haviland, Individually and as Adm'r, App'lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 13, 1893.)
    
    1. Cebditob’s action—Limitation.
    The right of a creditor to maintain an action to set aside a deed as given in fraud of the rights of creditors, does not accrue until after his recovery of judgment in this state against the debtor and the return of the execution thereon unsatisfied.
    3. Same.
    The cause of action is not deemed to have accrued until the discovery of the fiaud by the creditor, and not until his right to maintain the action has accrued.
    3. Appeal.
    The general term_ will not on review go outside of the findings for the purpose of discovering testimony upon which to reverse a judgment.
    Appeal from a judgment entered upon a decision of the Ontario special term.
    
      D. B. Badcenstose, for app’lt; George D. Reed, for resp’t
   Haight, J.

This action was brought to recover certain funds in the hands of the defendant and to set aside a conveyance of real estate on the ground that the same was made in fraud of the rights of creditors. The facts found by the trial court are in substance as follows:

On the l7tli day of September, 1878, Almond Haviland died leaving a last will and testament, in which he bequeathed all of his real and personal estate to his wife Phoebe Haviland during the term of her natural life. The property devised and bequeathed by him consisted of a house and lot in the village of Geneva and a certain mortgage upon premises in the state of Michigan executed by Henry S. Weaver and wife. On the 31st day of April, 1880, Phoebe Haviland sold and assigned the mortgage to one John D. Fish. At the time of making such sale she represented to Fish that she was the sole owner of the mortgage, and to induce the purchase thereof by him falsely and fraudulently represented that there was due and unpaid upon it the sum of $2,600, whereas in fact there was due and unpaid the sum of only $2,100. Thereafter Fish brought an action against her in the state of Michigan, where the assignment of the mortgage was made, to recover damages for the false and fraudulent representations made by her to him, and upon the 9th day of June, 1881, duly recovered a judgment therein for the sum of $454.64 damages and $50.36-costs. Thereafter he brought an action against her in this state upon the judgment so recovered in the state of Michigan, and on the 9th day of March, 1886, recovered a judgment that was-entered in the Ontario county clerk’s office for $667.47 damages and costs. An execution was issued thereon to the sheriff of that county, it being the county in which she resided, and the same was returned wholly unsatisfied. And before the commencement of this action the judgment was by Fish, with all of his rights and equities arising thereon, duly assigned and transferred to the plaintiff.

On the 2d day of June, 1891, seven days before the recovery of the judgment against her in the state of Michigan, she conveyed to the defendant all of her interest in the house and lot devised to her by her deceased husband, and transferred to him all of the moneys received by her from Fish upon the transfer of said mortgage, and that such conveyance and transfer were without consideration and were made with the fraudulent intent to place the property out of her hands so that the same could not be reached upon said judgment. That the defendant did not claim to be the owner of the mortgage when the same was assigned to Fish, or did he ever claim to own the same until after the recovery of the-judgment hereinbefore specified. Upon the conclusion of the trial of this action, and after the parties had rested, the defendant’s counsel stated that the plaintiff on the proofs would be entitled to recover were it not for the statute of limitations. The trial court-thereupon found as a conclusion of law that six years had not elapsed since the plaintiff’s right of action accrued, and ordered judgment in favor of the plaintiff for the relief demanded.

This action was commenced on the 13th day of February, 1892, and, as we have seen, the judgment upon which this action is founded was recovered on the 9th day of March, 1886. Six years, therefore, had not elapsed since the recovery of that judgment and the return of the execution thereon.

The right of the plaintiff to maintain this action did not accrue 'until after the recovery of the judgment against Mrs. Haviland in-this state and the return of the execution thereon unsatisfied. Code Civ. Pro., §§ 1871,1872.

Section 380 of the Code provides that “ the following actions must be commenced within the following periods after the cause of action has accrued,

Section 382, subd. 5, “ An action to procure a judgment,. other than for a sum of money, on the ground of fraud, in a case which, on the 31st day of December, 1846, was cognizable by the court of chancery. The cause of action, in such a case, is not deemed to have accrued until the discovery by the plaintiff, or the person under whom he claims, of the facts constituting the fraud.”

These provisions must be construed together, and so construed it follows that the plaintiff’s cause of action is not deemed to have accrued until the discovery of the fraud by him or the person under whom he claims, and not until after his right to maintain the action has accrued by the recovery of the judgment against Mrs. Haviland in this state, and the return of the execution thereon unsatisfied. Gates v. Andrews, 37 N. Y., 657; Eyre v. Beebe, 28 How. Pr., 333.

The cause of action herein is one covered by the subdivision of the section above quoted.

The conclusion of the trial court was, therefore, correct, and should be sustained.

It is contended that the plaintiff, or Fish, his assignor, had a complete remedy against the defendant, against which the statute of limitations had run. That at the time the mortgage was transferred to Fish the defendant did the entire business, and personally received the money upon the mortgage, and that, consequently, an action could have been maintained against him to recover back the amount of the over payment, if any.

The defendant has alleged in his answer that he was the owner of the mortgage and entitled to the proceeds thereof, and that he did all of the business in reference to the transfer to Fish. But the difficulty with his position is, that no such facts are found by the trial court, or requested to be found, and it is not the practice of this court, on review, to go outside of the findings for the purpose of discovering testimony upon which to reverse a judgment.

It is true that the testimony of the defendant, as taken before-the referee in supplementary proceedings instituted upon the return of the execution, tends to show that he personally transacted the business with Fish in Michigan. But this we regard as in conflict with the findings of the trial court in this action, and also that of the court which rendered the judgment in the state of Michigan.

In this action it is found that, in order to induce the purchase of the mortgage by Fish, Phoebe Haviland falsely and fraudulently represented that there was due and unpaid upon the mortgage the sum of $2,600, and that she transferred to the defendant the moneys received by her upon the transfer of the mortgage with the intent to place the same out of her hands so that the same could not be reached upon the judgment then about to be recovered against her by Fish. In the action brought in Michigan it was alleged that the mortgage was purchased of her and that she represented that there was at that time due the sum of $2,600 and that Fish, the plaintiff in that action, relying on such statement by her paid to her that sum and took an assignment from her of the mortgage. And upon the trial those facts were found true, as appears from the judgment therein entered.

It is, therefore, not apparent that a cause of action at law could have been maintained by Fish against the defendant immediately after the transfer of the mortgage to Fish. Certainly no such action could have been maintained under the findings of the trial court as they stand. And we would not be justified, under the practice or upon the record before us, in supplying findings of fact that would show that such an action could have been maintained.

We have not omitted a careful examination of the allegations of the complaint. In none of them have we found an allegation that the defendant transacted the business with Fish or that Fish paid the money for the assignment of the mortgage to him. The allegation that Phoebe Haviland turned over all of the avails of the mortgage to the defendant at the time of the assignment does not establish the fact that Fish paid to him or knew that he received the money.

The answer contains no allegation to the effect that Fish had an adequate remedy at law against the defendant from the time that the money was paid over upon the transfer of the mortgage and that the statute of limitations had run thereon before this action was commenced.

We think, therefore, this defense is not available to the defendant. Ostrander v. Weber, 114 N. Y., 95, 22 St. Rep., 979; The Town of Mentz v. Cook, 108 N. Y., 504; 13 St. Rep., 845.

The judgment should be affirmed, with costs.

Dwight, P. J., Macomber and Lewis, JJ., concur.  