
    James McCormick, Appellant, v. Victor A. Wilder and Lillian M. Wilder, Respondents,
    Judgment affirmed, with costs.
    Appeal by the plaintiff, James McCormick, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Orange on the 19th day of November 1900, upon the decision dismissing the plaintiff’s complaint upon the merits, after a trial at the Orange Special Term.
   Hirschbbrg, J.:

The plaintiff sues in order

to obtain an adjudication declaring certain real estate belonging to the defendant Lillian M. Wilder subject to a trust for his benefit to the extent of a judgment which he holds against her husband, the defendant Victor A. Wilder. The plaintiff sold pictures to Victor A. Wilder in 1891, and in 1,897 recovered a judgment against him for the purchase price, amounting with interest and costs to the sum of $11,183.04. After the sale, and of course during the existence of the indebtedness, Mrs. Wilder acquired and still holds the legal title to two parcels of land in Orange county, The consideration of one piece was $15,000, of which her husband paid $7,000 in cash, she securing the balance by the execution and delivery of her bonds and mortgages. The consideration of the other purchase was $5,500, of which her husband paid $3,500 in cash, and the remainder was secured by Mrs. Wilder’s bond and mortgage. Thereafter the property, occupied by the defendants as their home, was extensively improved, the expenses -attendant upon the improvements being all defrayed by the husband. Mr. Wilder long afterwards became insolvent because of the failure of large enterprises in which he had embarked, and the plaintiff has been unable to collect his judgment. He claims that by virfcde of sections 51 and 52 of 1 Revised Statutes, 728, re-enacted in section 74 of the Real Property Law (Laws of 1896, chap. 547), a creditor’s trust in this real estate results to him to the extent necessary to satisfy his demand. The following are the provisions of the prior law: SectionSl. “ Where a grant for a valuable consideration shall be made to one person and the consideration therefor shall be paid by another, no use or trust shall result* in favor of the person by whom such payment shall be made; but the title shall vest in the person named as the alienee in such conveyance, subject only to the provisions of the next section.” Section 52. “ Every such conveyance shall be presumed fraudulent as against the creditors at that time, of the person paying the consideration; and where a fraudulent intent is not disproved, a trust shall result in favor of such creditors to the extent that may be necessary to satisfy their just demands.” The provisions of section 74 of the Real Property Law (sitpra), so far as they bear upon the casej are in substantially the same words, viz.: “A grant of real property for a valuable consideration to one person, the consideration being paid by another, is presumed fraudulent as against the creditcrs, at that time, of the person paying the consideration, and, unless a fraudulent intent is disproved, a trust results in favor of such creditors to an extent necessary to satisfy their just demands.” The respondents contend that inasmuch as a part only of the consideration was paid by the husband, the rule in relation to a resulting trust in favor of the person making such part payment should apply to his creditors, and that such trust accordingly fails where the whole consideration has not been paid. (Garfield v. Hatmaker, 15 N. Y. 475; Niver v. Crane, 96 id. 40; Schierloh v. Schierloh, 148 id. 103; White v. Carpenter, 2 Paige, 217; Sayre v. Townsend, 15 Wend. 647.) Without determining that question, we find no difficulty in disposing of the case upon the main question involved, viz., the question whether or not the defendants have disproved a fraudulent intent. The learned trial justice has found as a fact “that any presumption of fraud which might have arisen from the payment of so much of the consideration for the conveyance of said property to the defendant Lillian M. Wilder, by the defendant Victor A. Wilder, has been fully overcome, rebutted and refuted by the defendants herein, and that there was no intent or purpose to hinder, delay or defraud the plaintiff or any creditor of Victor A. Wilder, in the making of such payment by the said Victor A. Wilder, and the conveying of said lands to the defendanfc Lillian M. Wilder.” An examination of the evidence reveals the fact not only thafc. this finding is abundantly supported, but that no other could well have been reached. Without going into* details, it is-sufficient to say that Mr. Wilder was possessed of abundant means and was entirely solvent at-the time of the payments in questian; that he paid to the plaintiff long after the sales for which "the judgment was obtained upwards of $12,000 for pictures purchased from him; that -the plaintiff’s claim was resisted in the apparently honest belief that the indebtedness had been in fact discharged; that no other indebtedness exists against Mr. Wilder excepting those arising from the speculations which have resulted in his bankruptcy; and that the evidence in the-case not only proves affirmatively that Mr. Wilder was free from any actual .intent to defraud the plaintiff, but" that there are no circumstances established tending to warrant the suggestion of a.legal fraud, or such as might possibly be .predicated where ex-travágance in expenditure accompanies a precarious financial condition. The • judgmenu should be affirmed, upon the law and facts. All concurred.  