
    JOHN L. COLBY, Appellant, v. AUGUSTUS S. PEABODY, et al., Respondents.
    
      Creditor's bill—transfer of seat in stock exchange, defendant having no other property excepting stock margin.
    
    In an action brought by a judgment creditor to set aside a transfer of a seat in the Stock Exchange, made hy the debtor to his son without valuable consideration, shortly after the beginning of the action in which the judgment was recovered, it appeared that at the time of the transfer, beside such seat, the debtor possessed an interest in stocks, viz,: a margin of the cash value of §26,612; that the action in which'the judgment was recovered was brought for §73,000, but that by reason of a counterclaim of §50,000 on contract, the recovery was only §18,000. It also appeared that subsequently said margin was absorbed in the stock trans-* action referred to, leaving defendant without property.
    
      Held, that the defendant could not be held insolvent at the time of the transfer; that the question whether he was guilty of fraud in parting with the property with intent to deprive plaintiff of its benefit, was a question of fact for the court below; also, that defendant had the right to show that the transfer was not induced hy plaintiff’s action, by proving that it was the result of determination made theretofore.
    Before Sedgwick, Oh. J., Van Vorst and Freedman, JJ.
    
      Decided December 7, 1885.
    Appeal from judgment dismissing complaint, entered upon findings of the court at special term.
    The action was to obtain judgment setting aside a transfer of a seat in the Stock Exchange, made by the defendant to his son, in fraud, as was averred, of the creditors of the former. The court below found, among other things, that said transfer was without valuable consideration.
    Further facts appear in the opinion.
    The judge directed that the complaint should be dismissed.
    
      Stephen B. Brague, for appellant.
    I. The pecuniary condition of the defendant was such that a bare stateinent of the facts leads the irresistible conclusion that he transferred his seat to avoid the liability to the plaintiff, The intent and motive are inferred from all the facts and circumstances of each case, the pecuniary condition of the party; the character of his business, whether precarious or not; the amount of his liabilities as compared with property. The voluntary conveyance is prima facie evidence of fraud, not conclusive. But the presumption of fraud can only be met by the fact that the debtor retained sufficient to pay his existing debts. There is a uniformity of decision, that a transfer under the circumstances of this case is fraudulent (Carpenter v. Roe, 10 N. Y. 227; 2 R. S. 127, § 4 ; Seward v. Jackson, 8 Cow. 422 ; Hinde’s Lessee v. Longworth, 11 Wheat. 199 ; Reade v. Livingston, 3 Johns. Ch. 481; Stat. 13 Eliz. Ch. 5 ; Twyne’s Case, 3 Coke, 80; 1 Smith L. C. 34; Place v. Sedgwick, 5 Otto, 3 ; Coleman v. Burr, 93 N. Y. 17). Hinde v. Longworth could have been used as a brief in this case. It was reversed on the sole ground that evidence to rebut the presumption of fraud was excluded. (Bump Fraudulent Con. 3d Ed. 23, 270 et. seq.).
    
    The court is also in error in giving any weight to sustain the conveyance by proof of a previously expressed determination or promise; no court has ever given any weight to evidence of a previous promise to sustain a fraudulent conveyance where the promise was without consideration. It is a- constant practice to resort to the previous promise ; as a promise to convey a farm for services to be rendered (Robinson v. Stewart, 10 N. Y. 189 ; Seward v. Jackson, 8 Cow. 406).
    
      Martin & Smith, A. P. Whitehead, and M. W. Devine, for Peabodys, respondents.
    The burden of proof is upon plaintiff to show fraudulent intent (Wait Fraudulent Con. § 271; Starin v. Kelly, 88 N. Y. 418). It was decided before the statute that a voluntary conveyance by a person in debt at the time was not necessarily fraudulent (Seward v. Jackson, 8 Cow. 406 ; approved 63 N. Y. 76). Absence of consideration is held not to be enough alone to authorize judgment for plaintiff. There must be facts showing actual fraud (Holden v. Burnham, 63 N. Y. 74; Babcock v. Eckler, 24 Ib. 633; Dygert v. Remerschneider, 32 Ib. 636 ; Genesee Nat. Bank v. Mead, 92 Ib. 637 ; Young v. Heermans, 66 N. Y. 374; rev’g 5 Hun, 124 ; Carr v. Breese, 81 N. Y. 584; rev’g 18 Hun, 134; Savage v. Murphy, 34 N. Y. 508; Case v. Phelps, 39 Ib. 164; Carpenter v. Roe, 10 Ib. 227; Shand v. Hanley, 71 Ib. 319 ; Mullen v. Wilson, 44 Penn. 413, distinguished ; Lormore v. Campbell, 60 Barb. 68 ; Spicer v. Waters, 65 Barb. 233 ; 19 Wend. 134, 445 ; 5 Wend. 661).
   By the Court.—Sedgwick, Ch. J.

The counsel for appellant in this case seems to me, to make in, his able argument, an error of calculation, which perhaps may" be deemed to be of decisive importance. It occurs in the statement of the property owned by the debtor at the time of the assignment by him, and which is claimed to have been fraudulent. The judge below had found on competent testimony that the debtor had an interest in stocks in the shape of a margin of the cash value of $26,612. A few days before he assigned the property in controversy to his son, the present plaintiff had begun against the debtor an action to recover about $73,000, principal and interest. This is assumed to have been due by him at the time of transfer. The proof shows that the action made the claim. In it, besides a denial by defendant of any indebtedness to plaintiff, he interposed a counter-claim upon contract for $50,000. The plaintiff recovered only $18,000. Therefore, in estimating his, defendant’s, means at the time of the transfer, it would not be correct to charge him more than the latter amount, instead of $73,000. On the proof then he was not insolvent, and so the judge found.

As to whether he was to be charged with fraud in fact, for parting with the property, with the intent to deprive the plaintiff of its benefit, when he knew he was about to engage in a speculative, hazardous business, ■which, in fact, did absorb the property he owned after the assignment, it was a question of fact to be submitted to the court below, in the light of all the circumstances of the case. The defendant had a right to show to the court that the transfer was not induced by the action brought by the plaintiff a few days before, by proving that the transfer had been meditated before the action was brought, and was the result of a determination made before. If the court was satisfied that the latter condition existed, it might consider it with other facts that the plaintiff could claim were proved, like the following : The plaintiff’s claims were of long standing, none being later than June, 1877. The defendant rightfully _ denied that the amount claimed was due, either because that amount had never been due, or because of his counterclaim for services. There was nothing to require the court to find that the defendant believed the plaintiff would recover against him, and for such a reason, or for any other reason, disclosed by the evidence, intended that the property assigned should be in the hands of his son, at a time when the speculations might leave him without property to satisfy such claim as it might turn out the plaintiff had.

The case would not justify a reversal of the judge’s findings of fact.

Judgment affirmed, with costs.

Van Vorst and Freedman, JJ., concurred.  