
    Hattie Spotten, Resp’t v. William H. Keeler, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 11, 1887.)
    
    1. Fraudulent conveyance—When bale fraudulent as to creditors.
    On the trial of an action brought to recover the value of certain carriages alleged to belong to the plaintiff, which were levied upon and sold by the defendant as sheriff under an execution issued to him on a judgment against the plaintiff’s father, the plaintiff claimed title to the property as a purchaser under a sale to her by her father five months previous to said levy. The defense was that the sale was fraudulent, made to 'hinder and delay the creditors of the father. It appeared that the property formed part of certain property used in a livery business, and that the property transferred was worth about $7,000. Before the transfer of said property to her the plaintiff was wholly irresponsible, and her father was insolvent. There was no real or actual change of possession on the sale to plaintiff or afterward, and the property was employed thereafter as it had been before, at the same place. The consideration for the sale was one dollar, and agreement that she would take care of her father as long as he lived (he being then ill). Held, that the sale to plaintiff was fraudulent as against the creditors of the father; that the plaintiff was not entitled to recover.
    <3. Same—Inadequate consideration evidence of fraud.
    It is fraudulent as to creditors of a vendor for one to receive from him a transfer of all his property on a grossly inadequate consideration.
    3. Same—Evidence of change of possession.
    The defendant asked the court to charge that concurrent possession of the plaintiff and father was not such a change of possession as the law required. The court refused to so charge. Held, error.
    
      4. Same—What amounts to change of possession.
    The actual and continued change of possession required by the statute-means an open public change of possession which is to continue and to be-manifested by outward and visible signs such as render it evident the possession had changed.
    6. Same—Transfer in trust for debtor fraudulent.
    If the alleged transfer was made in trust for the use or benefit of the debtor, or_ if he secured some benefit to himself at the expense of his-creditors, it was fraudulent as against his creditors.
    0. Same—When gift fraudulent.
    A gift or voluntary transfer of property by a debtor when sufficient property is not retained to pay his debts is fraudulent and void as against his creditors.
    7. Practice—Evidence—Presumption as to identity of persons.
    A judgment in favor of a third party against one Swan, the hither of plaintiff, was offered in evidence, and excluded on the ground that the defendant therein was not shown to be Swan, the plaintiff’s vendor. Seld, error, that identity of names is presumptive evidence of identity of persons.
    8. Same—Judge’s charge—Meaning of “believe” in.
    Where the judge in his charge instructs the jury that if they ‘ believe,” etc., it is equivalent and should be understood as “if they should find.”
    This is an appeal by the defendant from a judgment against him on the verdict of a jury in the Albany county court for $464.06 and costs, in all $563.41 and from an order-denying a motion made on the minutes of the court to set aside the verdict and for a new trial.
    The action was brought to recover the value of one Landau coach; one buggy wagon; one phaeton and one top buggy, alleged to belong to the plaintiff, which were levied upon and sold by the defendant, as sheriff, under an execution issued to him on a judgment against Harvey B. Swan, plaintiff’s father. The plaintiff claimed title to the property as purchaser under a sale to her by Swan, February 14,1885.
    The levy and sale by the defendant was in July next following. The defense was that the sale by Swan to the plaintiff, his daughter, was made to hinder, delay and defraud his creditors, hence, was fraudulent and void as to-them. The execution was issued to the defendant by or in behalf of one Peter Esmay, on the judgment against Swan, of which he was assignee, rendered in the supreme court and docketed June 25, 1879, for $271.92. Exceptions were taken and entered by the defendant to the rulings of the court on questions of evidence; and also to refusals to instruct the jury as requested, which exceptions are considered in the-opinion.
    
      Gregory Brothers, for app’lt; James C. Matthews, for resp’t; Andrew Hamilton, of counsel.
   Bockes, J.

We are of the opinion that a new trial must be granted on the ground that the verdict is manifestly against the evidence; and for errors in the rulings of the court as well.

Esmay held the position of a judgment creditor of Swan, when the latter made sale of his property to his daughter, the plaintiff; and might therefore, through the sheriff, assail its integrity in this action.

The sale was without any consideration then paid or secured to be paid and was of property of the value of about $7,000, according to the plaintiff’s estimate, who, without, the property sold her, was wholly irresponsible. The sale, too, was of property of which she stood in no need, and it was thereafter employed by her, as it had been before, by her father, in a business unusual for a female to engage in, and singularly inappropriate to be conducted by such a one for profit. There was no real actual change of possession on the sale or afterwards, and the property was employed thereafter as it had been before, at the same place and in all respects under like circumstances.

As above stated, the sale was, without consideration paid, and without security for payment in future, and it was absolute in terms and irrespective of the property transferred. Swan was insolvent. Although present at the trial, Swan was not sworn as a witness.

On the plaintiff’s testimony the transfer was little else than a naked gift. As a bona fide sale which should bar the claims of Swan’s creditors to the property and its avails, she makes it quite unsatisfactory. On her first examination in supplementary proceedings, she testified that her father was to give her all he had if she took care of him as long as he lived. He was then very ill, and she considered him liable to die at any time; further, that she paid one dollar of her husband’s money for the things, and that was all she paid; and again, on her first examination, the question was asked her:

Q. What was said at the time the writing was drawn? ”

A. He said he would give me all he had if I would take care of him during his life and stay here, that he did not want to go elsewhere, it had always been his home; he told me he considered the house was mortgaged for more than it was worth; then he specified the household furniture and horses and wagons, and all that there was; he said everything, and I considered it mine; I told him I did not want him to die, I would rather he would live it all up; I asked if my half-brother could claim anything; he said no, if he gave it to me in that way; I told him I made a sacrifice in coming down here and leaving my house; he said he wanted me to have all he had, as he had no one else to give it to; that was everything that was said; and again she testified that she had several conversations with her father upon the subject prior to December, and that in those conversations he said he would give her the property if she would come and take care of him “on the understanding that he was to give me the bill of sale; ” and again:

“Q. I ask you to state what was said and done at the time of the execution of this bill of sale? ”

A. The arrangement was talked over of my coming home. The bill of sale was drawn up as security to me for giving up my home in Lansingburgh and going there.

Q. Was that the consideration of the bill of sale ?

, A. Yes.

Q. That was the only consideration ?

A. A dollar; I can’t state more definitely as to what was said and done at the time this bill of sale was executed.

There was a manifest effort on her part on the trial to find and make out a consideration. At most, however, it was but trifling compared with the property transferred and it was altogether of a suspicious and unsatisfactory character. So it has been repeatedly held that it was fraudulent as to creditors of a vendor for one to receive from him a transfer of all his property on a grossly inadequate consideration. It may be that there was here no actual fraudulent intent in the minds of the parties. It may be .that the transfer was made under an apprehension of ■Swan’s speedy decease to put his daughter in immediate control of the property instead of giving it to her by will. The transaction nevertheless would be in law fraudulent as ■to Swan’s creditors. It is urged that the plaintiff, as part consideration, had paid certain debts of her father and had made advances to and for him relying upon the sale and transfer to her, and that having done so, she may hold the property as her security and indemnity therefor. To this it may be answered (1) this would not make the transaction conclusive against tho claims of Swan’s creditors; and (2) it appears that sho holds abundant property yet under -the sale besides this in controversy to satisfy such rights .and equities in her behalf. In every aspect of the case suggested to our minds, the verdict seems entirely unsatisfactory. If a debtor may dispose of his property in the way it was here done, the facts and circumstances here shown to exist and then put his creditors at defiance, the law is of little avail to the latter by way of affording them protection against injustice. The jury should, we think, have found on the proof submitted to them for the defendant. The transaction was as we conclude plainly fraudulent and void as against Swan’s creditors and the verdict should have been to that effect.

The court was not in error in excluding proof of statements made by Swan. Such statements were but hearsay. If important as evidence Swan should have been called to prove the facts. This ruling was right.

The court should not have excluded proof of the judgment in favor of French & Nicholson against Swan, on the ground that the defendant therein was not shown to be Swan, the plaintiff’s vendor. Identity of names is presumptive evidence of identity of persons. Therefore, if of importance in the case, the proof should have been admitted. But as the case was made, the ruling could hardly have worked harm to the defendant.

The court was requested to instruct the jury that if they believed that the necessary consequence of the alleged transfer was to defraud the creditors of Swan, then the transaction itself was evidence of fraud. It is understood that the import of the word “ believe,” as here used, is the same as “should find.” If so, this instruction should have been given. 24 N. Y., 632.

The defendant also requested the court to charge that concurrent possession of the plaintiff and Swan was not such a change of possession as the,law required. This request was pertinent to the case on the proof and the instruction requested should have been given.

The following instructions were also asked to be given the jury, which were refused :

Defendant’s counsel then requested the court to charge the jury that the actual and continued change of possession required by the statute means an open public change of possession which is to continue and to be manifested by. outward and visible signs such as render it evident that the possession of Swan had changed.

The Court: I refuse to charge on that subject other than I have charged.

Exception by defendant.

Defendant’s counsel asked the court to charge the jury that if they believe that the alleged transfer was made in trust for the use or benefit of Swan, or that he secured some benefit to himself at the expense of his creditors, that it is fraudulent and void as against his creditors.

The Court: I have charged on that subject as fully as I propose to charge.

Exception by defendant.

Defendant’s counsel then asked the court to charge that a gift or voluntary transfer of property by a debtor, when sufficient property is not retained to pay his debts, is fraudulent and void, as against his creditors.

The Court: I will refuse that.

Exception by defendant.

Defendant’s counsel asked the court to charge the jury that the assignee, Peter Esmay, of the Mary Keenan judgment, stood in. the same position, and is to be regarded aa an existing creditor at the time of the alleged transfer.

Request refused. Exception by defendant.

These requests should have been complied with. The case made on the evidence made them pertinent. As to the third and fourth requests next above given, it does not appear that the court had in the general charge answered them.

Judgment reversed; new trial granted; costs to abide the event.  