Opinion
March Term, 1901.
Leander B. Faber, for the appellant.
John W. Magee, for the respondent.
The action is brought to set aside as fraudulent a conveyance of premises at Morris Park, Long Island, dated May 23, 1899, and made by the defendant Parkin to the defendant Grauer. Parkin was the owner of six lots at Morris Park. In March, 1898, he made a written contract with the plaintiff for the erection of a building thereon for the price of $4,000. It was proved that the actual price was to be $3,500, and that the $4,000 was inserted at Parkin's request, for the purpose of enabling him to secure a larger mortgage loan on the premises. The last payment on the contract not being made, the plaintiff sued Parkin therefor in the County Court of Queens county, and on May 9, 1899, recovered a verdict of $1,500. A motion was made for a new trial, and a stay of proceedings was granted. An order denying the motion was entered on May twenty-fourth and judgment was entered on May twenty-seventh. Execution was issued July fifth and returned unsatisfied July fourteenth. The deed in question was executed on May twenty-third and recorded on May twenty-fourth while the motion for a new trial was pending and the stay in force.
The court found that Parkin, neither on July fourteenth, the day the execution was returned unsatisfied, nor at any time since, has had property within the State other than the premises in question, out of which the judgment could be satisfied; that he executed the deed while the stay was in force; that the premises were worth $5,500, and that the conveyance was without consideration and was executed for the purpose of delaying and defrauding the plaintiff in the collection of his judgment.
Fraudulent intent is by the statute (Laws of 1896, chap. 547, § 229) a question of fact, and there was evidence justifying the findings of the court. As there was conflicting evidence of the value of the property, ranging from $3,400 to $6,000, the court was justified in finding the value to be $5,500. There was a mortgage of $2,700, leaving an equity of $2,800. The defendant Grauer claims that the conveyance was made to secure an indebtedness of $950 to him and his father. When we examine the items of this amount we find that $600 was secured by a chattel mortgage on certain fixtures on the premises which were used as a saloon, and that such mortgage was released, but that the fixtures came into the possession or control of the mortgagee or the defendant Grauer or the tenant who is now in possession of the premises, presumably under lease from Grauer. It is not necessary to analyze further the items making up the alleged indebtedness, for, even allowing the full amount of the claim and adding $950 to the mortgage, there remained an equity of $1,850 in the premises. This is of itself a badge of fraud.
Another badge of fraud was the conveyance after the rendition of the verdict and while a stay of proceedings was in force. This, taken in connection with the excess of the value of the equity over the indebtedness, was sufficient to raise a presumption that the conveyance was fraudulent, and cast upon the defendants the burden of proving that Parkin had other property with which to satisfy the judgment. The deed described Parkin as a resident of New Jersey. There was no attempt to show that he had any property in this State or that he was able to pay the judgment, and the court found that he was unable to do so.
We have no doubt that the conveyance was intended to, and actually did, hinder and delay the plaintiff in the collection of his judgment and was fraudulent, and that it was made without adequate consideration.
For these reasons the judgment should be affirmed.
All concurred.
Judgment unanimously affirmed on law and facts, with costs.